Volume 118 — Georgia Reports

<p>1. All evidence is admitted as of course, unless a valid ground of objection is interposed, the burden being on the objecting party to state at the time some specific reason why it should not be admitted. A failure to make sStth objection will be treated as a waiver, and prevent the court, on a motionlíor a new trial, from inquiring as to the competency of the evidence.</p> <p>2. A specific battery does not necessarily tend to establish one’s general character for violence : and on a trial for murder, where it was sought to show the character of the deceased for turbulence, it was inadmissible to prove a particular act of violence.</p> <p>3. A witness can not be impeached by introducing a record of his conviction for misdemeanor, it not appearing that the offense for which he was found guilty was one involving moral turpitude.</p> <p>4. There was no evidence that the accused provoked the assault by the use of opprobrious words, and therefore it was proper to refuse to give the charge taken from the opinion in Butler v. State, 92 Ga. 602 (5).</p> <p>5. Where the court, of its own motion, prevented defendant’s counsel from asking a particular question of the State’s witness, an exception to such ruling must in some way indicate wherein the defendant has been injured by the exclusion of the answer.</p> <p>6. The special requests, so far as proper, were covered in the court’s general charge, which was full and fair; the verdict was supported by the evidence, and the court did not err in overruling the motion for a new trial.</p>

<p>Inquisition of insanity. Before Judge Eoan. Eulton superior court. January 22, 1903.</p>

<p>Indictment for murder. Before Judge Spence. Thomas superior court. January 23, 1903.</p> <p>Groley Tyus and John Walker were indicted for the murder of Alex. Godwin, and were found guilty, with a recommendation to mercy as to Walker. His motion for a new trial was overruled, and he excepted. It appears that on the 14th of September, 1902, Tyus and Walker were seen together in the town of Cairo, “ knocking about like people generally do in town,” before noon, and again in the afternoon they were seen standing together and talking. A witness heard Walker tell Tyus to go his route; he would not be arrested while he was in town. Another saw them talking while. Tyus loaded a pistol, and heard Tyus say, “ God damn old man Howze; he can’t arrest me.” After dark one Maxwell had some words with Tyus, and during this conversation Walker passed them, but did not “take up.” Tyus drew a weapon on Maxwell, and Walker came “ mighty quick.” Directly after Maxwell got rid of Tyus, Walker passed by and said, “Go your route; if you get in jail, I will pay you out.” Tyus was then walking off; he could have heard what Walker said. They were either cousins or brothers-in-law. Later in the evening Howze, the night watchman of the town, attempted to arrest Tyus for shooting his pistol in the street, and, while so doing, was shot and wounded by Tyus, who also shot and killed Jeff. Godwin, who by request of Howze was assisting in making the arrest. While this transpired Walker was a block away and out sight of the participants in this shooting, standing by his horse and talking with two other persons, one of whom told him, “ You had better get in that buggy and go on home; if you don’t, you will be arrested.” He replied, “ Arrest the devil; there aint a man in Cairo can arrest me.” About that time pistol shots were heard, and Walker said, “ God damn it, that’s Goley Tyus; and there’s one more good man in town.” He drove immediately in the direction of the shooting. He met Howze and ask him what was the trouble, and if he knew who it was. During the same night Alex. Godwin, who was the day marshal of the town, went in search of Tyus, accompanied by one Taylor. They drove about six miles from Cairo, where, about two o’clock in the morning, they met a buggy with Tyus and Walker in it, going from the direction of Walker’s house, which was on a different road. There was bright moonlight. God-win was walking behind the buggy driven by Taylor. He wore a marshal’s badge about two and a half inches wide. He hailed the occupants of the other buggy, “ threw his gun ” on Tyus, and said, “Crawl out of there.” Tyus said “Who, me?” Godwin said, “ Yes, you.” Tyus stepped from the buggy, but before he reached the ground he fired his pistol, and the shot killed Godwin. Tyus ran off through the woods. Walker drove down the road seventy-five or a hundred yards, where he made a short halt, and then drove on. After daylight of the same morning, Taylor found a track toward where he last saw Tyus. The track came in the road not far from where Walker stopped. He could not swear that Tyus knew of Godwin’s being marshal; but Walker was obliged to have known it. Tyus went to Cairo often. The Godwin family raised him. Between midnight and daylight, Walker stopped his buggy at the house of one Williams, called him out, and asked to be allowed to leave his gun and other things there, saying he did not want them to see him with anything; for if they did, they would be claiming something against him about the shooting. Williams refused. Walker put the gun back in the buggy and drove away. Between three and four o’clock of the same morning Walker was arrested just below his house. In his buggy were found grain, fodder, bed-quilts, a bucket, and a shotgun. He had seven or eight shells in his coat-pocket. He made some contradictory statements to the persons arresting him as to his knowledge of what had taken place.</p>

<p>Indictment for murder. Before Judge Dart. Charlton superior court. December 30,1902.</p>

<p>The provisions of the Civil Code, §4639, that, “before any writ of certiorari shall issue,” the applicant therefor shall comply with certain requirements as to the giving of a bond and furnishing evidence of ms having paid all costs which may have accrued, have no application to a criminal prosecution.</p>

<p>Indictment for assault with intent to murder. Before Judge Gober. Cobb superior court. January 31, 1903.</p>

<p>Where one is indicted, under the Penal Code, § 708, for cruelly, unreasonably, and maliciously beating and ill-treating a child, it is error for the judge in defining the offense to the jury to omit the element of unreasonableness, and it is also error to refuse a legal request to charge that unreasonableness is an essential element of the crime.</p>

<p>Certiorari. Before Judge Mitchell. Thomas superior court. February 18, 1903.</p> <p>To the facts stated in the opinion the following is added in connection with the third division thereof. The petition for certiorari alleged that on the trial in the county court Henry Kelly testified as follows: On April 4, 1902, Florence Powell came to him and said she wanted to get him something to drink. He gave her twenty-five cents and told her to go and get him something to drink. After she left his store he followed her, being on the opposite side of the street from her. She went three or four hundred yards down the street, and entered the store of the defendant, v He saw her go in and behind the partition running across the back end of defendant’s store. He saw defendant hand her something; could not swear what. Witness was standing about seventy yards across the street from defendant’s store when defendant handed the package to Florence Powell. Defendant’s store was lighted up, and other persons were therein at the time. After a short while Florence Powell came out of the store and walked up the street, and witness walked up on the opposite side. After going about a hundred yards he went across to where Florence Powell was. She handed him the bottle and said it was liquor, and told him she got it from defendant’s store. Witness did not see her or any other person pay defendant any money for any liquor, nor could he swear that defendant handed her any liquor in his store. He had never known or seen defendant sell any malt or intoxicating liquor. The side .of the street on which Florence Powell walked was occupied by several other merchants, and other persons were on the street with whom she came in contact. — The petition also set forth a statement made by the defendant on the trial, to the effect that he never sold any one any malt or intoxicating liquor; that his storehouse was searched on the 5th of April, and no such liquor was found, ■etc.</p> <p>The answer of the county judge states, that Kelly testified as follows: He gave the woman 35 cents and told her to go and buy him some whisky. She took the money and kept it in her hand as she walked down the street. He followed, watching her all the time. He went down the opposite side of the street, and watched her until she went into defendant’s place of business. He was then across the street, where he could see into the defendant’s store, and not over 100 feet from it. The store was brightly lighted,- and he stood where he could see into it well, and the woman, Florence Powell, never went out of his sight. She went back to a partition but not beyond it, and the defendant came out from behind the partition or a counter. He could hot see him until he came into the light near the woman. She reached out the same hand in which she carried the money witness gave her, and defendant reached out his hand until it met hers, and then went out of sight behind the partition or counter, and in a very short time returned and handed the woman a package in a paper sack. She took this by the top of the sack, and came out with it in her hand, swinging it down. Witness had crossed the street, and when the woman came out he was not more than twenty feet from her. As soon as she turned up the street he started towards her. She still had the same package in the same hand, and in the same position in which she took it when she received it from the defendant. She had not changed the package from that hand at all between the time she came out of defendant’s store and the time witness overtook her, when she handed him the package she had received from defendant. He opened it, and it contained a bottle with corn whisky therein. He was positive it was the same package that defendant had given the woman, and it did have corn whisky in it. He could not swear positively that she gave defendant money for it; but she had the money in the same hand that she reached out to defendant, and defendant put' out his hand till it met hers. . It was so light in- the' store that it was no trouble to see anything in there, and he did see all he swore to. He watched Florence closely from the timé he gave her the money until she gave him the bottle of whisky.</p> <p>On the hearing of the traverse of the answer Henry Kelly swore: The statement of his evidence in the petition for certiorari, the same having been handed to him for examination, is correct, except that it made the street referred tó 70 yards instead of 70 feet wide; and that Florence Powell did not go.behind the second partition in the store, but only went to the door in the partition. He did not swear, at the trial in the county court, that it was whisky. “ I don’t think that the question was asked me then whether it was whisky or not. But it was whisky.”</p>

<p>Indictment for misdemeanor. Before Judge Fite. Gordon superior court. March 4, 1903.</p>

<p>1. The requests to charge, in so far as they were pertinent and proper, were fully covered in the general charge, which correctly submitted the issues to the jury.</p> <p>2. The charge as to the right of a son to defend his father was as favorable to-the defendant as he could legally ask, and was given without any suggestion as to whether it might not have been lost if the son knew that the father himself would have had no right, at the time, to kill the deceased.</p> <p>3. While in determining whether there was cause for reasonable fear, or whether the homicide was justifiable, the jury might consider tho difference in size and physical condition of the parties, it would have been erroneous for the judge to instruct them that they should co'nsider such disparity.</p> <p>4. For the witness to state what was his intention was not opinion evidence, but proof of a substantive fact, and admissible in this case. ' The error in excluding such testimony was subsequently cured by allowing'tho witness to testify to his intention.</p> <p>6. There was no assignment of error whatever on the charge as given; and this being a second verdict of guilty, and there being no error requiring the grant of a new trial, the judgment is affirmed.</p>

<p>Indictment for obstructing legal process. Before Judge Spence. Decatur superior court. February 16, 1903.</p>

<p>Indictment for murder. Before Judge Barrow. Chatham superior court. February 10, 1903.</p>

<p>Accusation of selling liquor. Before Judge Adams. City court of Dublin. March 7-, 1903.</p>

<p>Indictment for assault with intent to rape. Before Judge Russell. Gwinnett superior court. March 10, 1903.</p>

<p>Indictment for arson. Before Judge Evans. Laurens superior ■court. March 16, 1903.</p>

<p>1. I£ an act which purports to amend a section of the code be for any reason unconstitutional, the validity of the section sought to be amended is not affected; and an accusation the terms of which are such as to come within the provisions of the law as it existed before the passage of the amendment may stand notwithstanding the invalidity of the amendatory act.</p> <p>2. Even if an act from which a section of the Code of 1895 was taken be subject to the constitutional objection that it contains matter different from what is expressed in its title, this defect in the act would not render invalid the section of the code.</p> <p>'3. A local act which prohibits the sale of intoxicating liquors otherwise than through the medium of a dispensary established by the act and operated by the State or one of its subordinate political divisions is a prohibitory law within the meaning of the Penal Code, § 428, making penal the sale of such liquors in any county where the sale is “prohibited by law, high license or otherwise ; ” and this is true though the local act prescribes no penalty for a violation of its terms. The section of the code is not to be construed as relating in any way to sales by the State, the language of the section neither expressly nor by necessary implication requiring such a construction.</p> <p>■4. An act absolutely prohibiting the sale of intoxicating liquors in a given place suspends the operation in such locality of a general law providing that there shall be no sale without the payment of a tax or the procuring of a license oí the performance of some other condition. Such an act would not, however, suspend the operation of a general law making penal the sale in places where the sale is prohibited by law ; and where two such laws exist, a person making a sale may be indicted under either. This rule is more especially applicable where one of such laws expressly provides that the sale shall be penal only in those places where it is prohibited by some other law. In such a case it was manifestly intended that the two laws should stand together.</p>

Indictment for renting house for gaming. Before Judge Barrow. Chatham superior court. February 21, 1903. Horace Rivers was indicted jointly with Anna M. Herron and Charles H. Gibbes, for knowingly renting a house (at a given location) with the view and expectation of the same being used for the purpose of gambling. Rivers was separately tried, and was-found guilty. He excepted to the overruling of his motion for a new trial.

<p>Indictment for murder. Before Judge Evans. Laurens superior court. March 16, 1903.</p>

<p>Indictment for assault with, intent to murder. Before Judge .Roberts. Pulaski superior court. March 18, 1903.</p>

<p>Written notice of the sanction of the writ of certiorari and of the time and place of hearing must he given to the opposite party in interest. Notice to the members of the court which rendered the judgment complained of will not suffice.</p>

<p>Indictment for larceny from the house. Before Judge Roberts. Irwin superior court. ‘ March 10, 1903.</p>

<p>Indictment for larceny from the house. Before Judge Roberts. Irwin superior court. March 11, 1903.</p>

<p>Certiorari. Before Judge Roberts. Irwin superior court. March 11, 1903.</p>

<p>Certiorari. Before Judge Gober. Cobb superior court. March 28, 1903.</p>

<p>1. The fact of a former sentence must be charged in the indictment, where a • second conviction would affect the grade of the offense, or require the imposition of a different punishment.</p> <p>2. The maximum penalty might be imposed on a first conviction for burglary, and the requirement of the Penal Code, § 1042, that it must be imposed in the event of a second conviction, does not alter the character of the original offense, or provide for a different punishment.</p> <p>3. Allegation and proof that the defendanthad previously been sentenced to imprisonment in the penitentiary would tend to his prejudice, and need not be made as a basis for the imposition of the maximum penalty provided by the Penal Code, § 1042.</p> <p>4. After a second conviction the judge may inspect the record of the former trial, act on his own knowledge, or hear evidence to satisfy himself of the identity of the accused.</p> <p>5. One who stands near by and watches while his confederate breaks and enters a house with intent to steal therefrom is guilty of burglary as principal m the second degree. The act of one is the act of both ; and as principals in the first and second degree are punished alike, no distinction between them need be made in the indictment. Leonard v. State, 77 Ga. 764; Collins v. State, 88 Ga. 347 ; Penal Code, §§ 42, 43.</p> <p>6. Where a witness who has been put under the rule remains in the court-room, he is not thereby rendered incompetent. He might be subject to attachment for contempt; but to exclude him altogether might deprive a party of the only witness by which a fact in issue might be established. May v. State, 90 <7cs. 800.</p> <p>7. The preliminary proof was ,sufficient to admit the confession ; and the verdict was sustained by the evidence.</p>

<p>Indictment for burglary. Before Judge Eelton. Bibb superior court. March 30, 1903.</p>

<p>Certiorari. Before Judge Barrow. Chatham superior court. March 7, 1903.</p>

<p>Indictment for assault. Before Judge Taliaferro. City court of Sandersville. February 28, 1903.</p>

<p>1. The constitution, in guaranteeing that a defendant shall have compulsory process to compel the attendance of his witnesses, does not guarantee their attendance, nor more than ordinary diligence in serving a subpoena.</p> <p>2. It was not errorto charge that it was for the court in the first instance to determine whether the preliminary proof was sufficient to admit the dying declaration, with instruction that this ruling was not conclusive on the jury, who must be satisfied from the evidence thatthe statement was actually made in the article of death and when the defendant was conscious of his condition.</p> <p>3. It was not error, under the proved facts, to charge on the law of mutual combat and voluntary manslaughter.</p>

<p>1. In a proceeding in a municipal court to enforce an ordinance of the municipality, judicial notice will be taken of the existence and substance of the ordinance.</p> <p>2. A'municipal ordinance making it penal for any person “to be found idling, loitering, or loafing upon the streets ” of the municipality is not void as an effort to punish for the same acts which are embraced within the State laws against vagrancy.</p> <p>3. To warrant a conviction under such an ordinance it is not necessary that the municipality should prove that the accused is without property or means of support.</p> <p>4. Statements of fact made in a petition for certiorari can not be considered on the hearing when they are not verified by the answer.</p> <p>3. Questions not made in the record will not.be considered although they may be argued here.</p>

<p>Indictment for larceny. Before Judge Evans. Laurens superior court. March 16, 1903.</p>

<p>Indictment for keeping a gaming-room. Before Judge Barrow. Chatham superior court. March 14, .1903.</p>

<p>1. On the trial of a criminal case, it is not error prejudicial to the accused for the court to charge the jury that in reconciling conflicts in the evidence they may take into consideration evidence as to the good character of the accused.</p> <p>2 A beverage is not necessarily an intoxicant. Accordingly, on the trial of one accused of unlawfully selling intoxicating liquors, the use by the trial judge, in his charge to the jury, of the word “ beverage,” to describe certain drinks that the accused admitted having sold, was not an expression of opinion that the accused was guilty of selling an intoxicant.</p>

<p>In the trial of á murder- case, where the State relies in part upon a confession which is proved by the testimony of one witness only, it is error to charge : “When a confession is made and stated to the jury by a credible witness, it is of the highest order of testimony. There can be but few higher sources of evidence than a confession voluntarily and freely made.”</p>

<p>Accusation of gaming. Before Judge Hammond. City court of Griffin. March 24, 1903.</p>

<p>Indictment for trespass. Before Judge Hodnett. City court of Carrollton. March 12, 1903.</p>

<p>Accusation of vagrancy. Before Judge Crisp. City court of Americus. April 13, 1903.</p>

<p>Indictment for selling intoxicating liquor. Before Judge Adams. City court of Dublin. April 1, 1903.</p>

<p>1. Where in a criminal case there is no proof of the venue, a verdict of guilty is without evidence to support it.</p> <p>2. The brief of evidence filed with the motion for a new trial and approved by the trial judge must be treated as correct; and this court has no power to amend it or to order the clerk of the court below to send up the original transcript of the evidence, although it may have been identified by the judge.</p>

<p>Indictment for larceny. Before Judge Evans. Laurens superior court. March 28, 1903.</p>

<p>Accusation of simple larceny. Before Judge Hodges. City court of Macon. ' May 1, 1903.</p>

<p>Certiorari. Before Judge Parker. Glynn superior court. April 10, 1903.</p>

<p>Action for damages. Before Judge Felton. Bibb superior court. January 20, 1903.</p>

<p>Trover. Before Judge Felton. Crawford superior court. November 28,' 1902.</p>

<p>Interpleader. Before Judge Felton. Bibb superior court. November 10, 1902.</p>

Probate of nuncupative will. Before Judge Russell. Gwinnett superior court. August 2,1902. W. F. Scales offered for probate a nuncupative will alleged tO' have been made by Mary A. Thornton. The heirs at law of the deceased filed a caveat, and on appeal in the superior court the jury found in favor of the caveators.

<p>Appeal. Before Judge Holden. Hancock superior court. November 22, 1902.</p>

<p>Certiorari. Before Judge Russell. Rabun superior court. August 28, 1902.</p>

<p>Case. • Before Judge Gober. Cobb superior court. January 10, 1903.</p>

<p>Levy and claim. . Before Judge Eite. Gordon superior court. August 27, 1902.</p>

<p>1. A municipal corporation is not liable for the failure or refusal to exercise its charter power to abate a nuisance maintained by a private individual upon private property, and not of such a character as to amount to an obstruction of a public street or to imperil the safety of travelers thereon; and this is true notwithstanding the nuisance in question may consist of a sewer which the municipal authorities allowed to be constructed by a .private individual in. part under the streets of the city, that portion of the sewer under the public streets not being itself the cause of any damage either to the public orto any private individual.</p> <p>2. The petition in the present case, construed most strongly against the pleader, does not set forth a cause of action against the municipality for maintaining a nuisance. It is at most a complaint that the municipality consented to the-erection of a nuisance by a private individual, and has failed and refused to. abate the same.</p>

<p>1. Where a homestead was set apart under the constitution of 1868, and a mortgage on the homestead property was given in 1898, it was permissible for the defendant to set up the homestead in defense to an action to foreclose the mortgage.</p> <p>2. Where the original petition for such a homestead showed that the legal title to the land sought to be set apart was in the wife, who made the application, evidence was admissible to show that, subsequently to the filing of the original petition, she conveyed the land to her husband and so amended her petition as to show that the title to the land was in him and pray that the homestead be set aside out of his property.</p> <p>8. The defendant in an action to foreclose a mortgage by the terms of which the mortgagor waives all rights to homestead or exemption is not estopped by the recitals of the mortgage to deny the right of the mortgagee to sell the land covered thereby, under such a judgment as would deprive her of the use of the homestead property during her life.</p>

<p>Mandamus. Before Judge Fite. Gordon superior court. March 2, 1903.</p>

<p>Trover. Before Judge Reece. City court of Floyd county. November 3, 1902.</p>

<p>1. While a husband may make with a railway company a contract for the safe-carriage of his wife, the law will not imply such a contract from the mere - purchase of an ordinary ticket by the husband for the wife. In such a case the law raises an implied contract for safe carriage in favor of the wife only.</p> <p>2. Construing the petition in the present case most strongly against the pleader, it simply alleged that the husband had purchased an ordinary ticket for the wife, and did not set up that there was any other contract than one which would result from the purchase of such a ticket.</p>

Injunction. Before Judge Lumpkin. Fulton superior court. March 14, 1903.

Indictment for cheating and swindling. Before Judge Butt. Muscogee superior court. April 8, 1903.

<p>Indictment for simple larceny. Before Judge Lewis. Morgan superior court. March 5, 1903.</p> <p>According to one witness, the defendant volunteered to carry for him a jug of whisky he had bought in Atlanta for a person in Madison, and was allowed to do so. He carried it from the store where it was bought to the train, kept it with him on the train until arrival in Morgan county, and then disposed of it. It was not recovered. Other testimony tended to show that he was first requested by Harris to carry the whisky.</p>

<p>Complaint for land. Before Judge Felton. Bibb superior court. August 12, 1902.</p>

<p>1. A partnership is not liable to respond in damages to a person aggrieved by reason of slanderous reports concerning him circulated by one only of its members without the knowledge and sanction of his copartners.</p> <p>2. A party to a contract who did not know of and contract with reference to a legal custom confined to a particular city is not in a position to successfully assert that this custom became, by implication, a part of the contract into-which he entered, whether the other party thereto may or may not have previously given recognition to such custom. In the present case, the nature and operation of the business usage referred to in the plaintiff’s petition were not alleged with sufficient particularity and fullness ; nor did it contain the essential averment that he contracted with reference to this local custom.</p> <p>3. That a creditor, ignoring a gratuitous promise to grant indulgence to a debtor to which he was not legally entitled, brings suit against him upon an open account for a balance claimed to be still due thereon, does not, without more, constitute a malicious abuse of legal process ; and this is so notwithstanding the creditor may knowingly sue for a greater amount than is, in point of fact, still due upon the account, provided he is not actuated by any malicious design to impair his debtor’s credit or to make any other wrongful and improper use of the process.</p>

<p>Action for damages. Before Judge Nottingham. City court of Macon. December 11, 1902.</p>

<p>Certiorari. Before Judge Holden. Elbert superior court. September 12, 1902.</p>

<p>It is not necessarily, as matter of law, negligence for a passenger to be upon the platform of a moving train. Whether it is negligence or not in a particular case must depend upon the circumstances of danger attending the act and the reason which the passenger has for so placing himself. Ordinarily in such cases the question as to whether such an act is negligence is one for a jury; and unless the danger is obviously great, as where the train is moving at a rapid rate of speed, or the condition of the passenger is such as to make his presence upon the platform manifestly dangerous while the train is moving at any rate of speed, the court can not hold, as matter of law, that the passenger’s presence upon the platform is such negligence as would preclude a recovery for injuries received by being thrown from the platform by a sudden jerk of the train.</p>

<p>Case. Before Judge Russell. Gwinnett superior court. September 2, 1902.</p>

<p>Complaint. Before Judge Russell. Towns superior court. October 9,1902.</p>

<p>1. Where an election is held for a municipal office in the town of Belton and a contest properly instituted, no certificate of election being issued to either of the candidates, the old incumbent holds over until such certificate has been issued or until the contest has been decided, and he can not be removed from office on quo warranto proceedings instituted by the candidate who, according to the face of the I'eturns, received the highest number of votes, although such candidate has taken the oath of office.</p> <p>2. Where the answer of the respondent alleges that a contest has been filed with the officer having jurisdiction of such a proceeding and that the same has been duly served, this part of the answer should not be stricken on demurrer or motion on the ground that it is insufficient in that copies of the papers in the contest proceeding are not attached.</p>

<p>A petition in an action to recover real property described the land as “ lot of land number four hundred and twenty-five (425) ” in a given county, district, and section, and containing a specified number of acres. Plaintiff derived title from one to whom the defendant had conveyed the'property to secure a debt. Both the deed from defendant to his creditor and the deed from the latter to plaintiff described the property in the manner set forth in the petition, and there was no other description either in the deeds or the petition. An amendment was offered and allowed setting up that under the contract between the defendant and the grantee in the deed from him a different number of lot was agreed to be conveyed, and that the defendant, with intent to cheat and defraud the grantee had the scrivener to insert in the deed lot number 425. The prayer of the amendment was that the deeds be reformed so as to embrace the number of lot agreed to be conveyed, and that this lot be sold and plaintiff’s debt be paid out of the proceeds in preference to all other claims against the defendant. Held, that the amendment set forth a new and distinct cause of action, and that the court erred in overruling a demurrer thereto based on this ground.</p> <p>Simmons, C. J., and Lamar, J., dissent.</p>

<p>Complaint. Before Judge Fite. Bartow superior court. . January 17, 1091.</p>

<p>Petition for injunction. Before Judge Geber. Fannin superior court. March 28, 1903.</p>

<p>Ejectment. Before Judge Eite. Catoosa superior court. August 5, 1902.</p>

<p>1. Where two cases between the same parties are, by agreement, simply tried together, and a separate verdict and judgment is rendered in each, and a motion for a new trial is made in one of them and overruled, and such case is brought by writ of error to this court, only the record in that case can legally be brought up ; and if the record in the other case is also sent up with the bill of exceptions, this court can not consider it.</p> <p>2. The claimant being the only witness in her behalf, and there being before ■ the jury facts and circumstances apparently in conflict with her testimony, this court can not say that the jury were not authorized to find against her testimony.</p>

<p>Action for damages. Before Judge Reece. City court of Floyd ■county; January 12, 1903.</p>

<p>Action for damages. Before Judge Reece. City court of Floyd county. December 2, 1902.</p>

<p>Action for damages. Before Judge Janes. Polk superior court-December 31, 1902.</p>

<p>1. Courts will take judicial cognizance of the computation of time, and the coincidence of the days of the week with days of the month.</p> <p>2. Under the law of this State a contract executed on Sunday is not for that reason illegal, unless made in the prosecution of the ordinary business or calling of the party who assumes the obligation.</p> <p>S. Under the operation of this rule, a deed of gift is valid though executed on Sunday.</p>

<p>Levy and claim. Before Judge Henry. Eloyd superior court. August 16, 1902.</p>

<p>Libel for divorce. Before Judge Eelton. Bibb superior court. August 12, 1902.</p>

<p>Action for damages. Before Judge Norwood. City court of .Savannah. July 16, 1902.</p>

<p>Indictment for trespass. Before Judge Holden. Glascock superior court. February 28, 1903.</p>

<p>Indictment for abandoning child. Before Judge Butt. Muscogee superior court. March 14, 1903.</p>

Indictment for murder. Before Judge Reagan. Monroe superior court. April 27, 1903. The plaintiff in error was convicted, with recommendation of life imprisonment. A new trial was refused, and he excepted. For the other material facts see the opinion.

<p>Action for damages. Before Judge Holden. Warren superior court. August 30, 1902.</p>

<p>In a proceeding to set aside a sale of a stock of goods because made to defraud creditors, where the pleadings did not ask for a judgment for the difference between the value and the price paid, and where the judge charged the provisions of the Civil Code, § 2695, par. "2, a new trial will not be granted because of his failure, without a request, to charge as to the effect of inadequacy of consideration, — the inadequacy, if any, not being sufficient to manifest fraud as a matter of law, and the verdict showing that the j ury found as a fact that the purchase was bona fide and without notice of an intent by the insolvent grantor to delay or defraud creditors.</p>

<p>Equitable petition. Before Judge Holden. Hancock superior court. December 30, 1902.</p>

<p>Petition for specific performance. Before Judge Holden. Glascock superior court. December 13, 1902.</p>

<p>Levy and claim. Before Judge Estes. Habersham superior court. September 3, 1902.</p>

<p>Action on bond. Before Judge Gober. Cobb superior court. January 8, 1903.</p>

<p>Complaint. Before Judge Fite. t Gordon superior court. August 27, 1902.</p>

<p>Complaint for land. Before Judge Henry. Eloyd superior court, October 13, 1902.</p>

<p>Certiorari. Before Judge Henry. Eloyd superior court. September 30, 1902.</p>

<p>1. Under the Civil Code, §5172, there was no error, in view of the evidence introduced, in admitting in evidence certified copies of the deeds claimed to have been lost.</p> <p>2. A receiver’s sale of land does not divest the lien of a judgment obtained prior to the sale, where the plaintiff in such judgment is a stranger to the proceedings under which the receiver was appointed and the sale ordered.</p> <p>3. Questions not made in the record can not be considered by this court, although argued and insisted on here.</p> <p>4. The evidence authorized the finding of the judge, who tried the case without the intervention of a jury.</p> <p>6. A fact which has transpired since verdict is not ground for a new trial.</p>

<p>Complaint. Before Judge Henry. Floyd superior court. December 19, 1902.</p>

<p>Certiorari. Before Judge Henry. Floyd superior court. September 30, 1902.</p>

<p>Action for damages. Before Judge Janes. Haralson superior court. October 15, 1902.</p>

<p>Action on insurance policy. Before Judge Hodnett. .City court of Carrollton. January 10, 1903.</p>

<p>Injunction. Before Judge Spence. Worth superior court. March 26, 1903.</p>

<p>Certiorari. Before Judge Gober. Cobb superior court. March 28, 1903.</p>

<p>1. Where the losing party makes a motion for a new trial and also a motion in arrest of judgment, both of which are overruled, he may bring to this court the questions thus raised by separate bills of exceptions, although both rulings might have been excepted to in one bill. It is the better practice, however, to embody in one bill of exceptions all questions which may be legally raised therein.</p> <p>2. Where a petition contains three counts, one of which is voluntarily struck by the plaintiff, and a demurrer is filed to the petition as a whole, if either of the remaining counts sets forth a good cause of action the demurrer will be overruled.</p> <p>3. The plaintiff’s evidence was ample to withstand a motion to nonsuit.</p> <p>4. In an action for damages against several defendants jointly for an alleged trespass upon property of the plaintiff, the jury may return a verdict in favor of the plaintiff for separate amounts against the different defendants ; but in a suit for damages for malicious abuse of legal process, the verdict returned for the plaintiff should be for the same sum against all the defendants jointly. Where, therefore, a petition for damages contains two counts, one sounding in trespass and the other for malicious abuse of legal process, it is error for the court to charge the jury that they may find a verdict for the plaintiff for different amounts against the different defendants, without charging also that such a verdict could only be found in the event they find for the plaintiff solely on the count in trespass.</p> <p>■S. The judgment and the record on which it was based were sufficient to withstand a motion in arrest of judgment.</p>

<p>1. The owner of grain who hires the owner of machinery to thresh it is not hound to guard against the consequences of a defect in the machine until he knows or ought to know of danger of damage therefrom to himself or his property.</p> <p>2. Under the Civil Code § 3830, the word “ avoid ” is of broad and comprehensive meaning.</p> <p>3. In cases of pdrsonal injuries, the plaintiff as a conscious human agent is bound to exercise ordinary care to avoid the consequences of the defendant’s negligence, by remaining away, going away, or getting out of the way of a probable or known danger ; and if his duty requires him to remain in the presence of danger, he must exercise the ordinary care required of a prudent man under the particular circumstances.</p> <p>4. The same principle applies in suits for injuries to property; but it being inert and unable to act for itself, the owner is not ordinarily called upon to take active steps to avoid the consequences of defendant’s negligence until the danger is seen, or he knows that damage is likely to occur to his property as a result of some force or instrumentality under the control of the defendant.</p>

<p>There was no error of law complained of. The evidence authorized the verdict, and the discretion of the trial judge in refusing to grant a new trial will not-he controlled.</p>

<p>Injunction and receiver. Before Judge Kimsey. White superior court.' April 17, 1903.</p>

<p>Petition for injunction. Before Judge Kimsey. Lumpkin superior court. April 21, 1903.</p>

<p>Action for damages. Before Judge Reagan. Fayette superior court. September 16, 1902.</p> <p>A trestle of the defendant company was built across a public highway. There were allegations and evidence to the effect that the space left for passage of loaded wagons under the trestle was too low and too narrow; but the plaintiff was familiar therewith, having driven thereunder several times. The defendant long before had been notified of the insufficient space, and had caused to be made some alteration of the structure, which but partially relieved the situation. A driver could have alighted from his wagon and walked with his team under'the trestle. On the morning of October 9, 1899, the plaintiff was driving two mules drawing a wagon loaded with four bales of cotton. As he approached the trestle he crouched with his feet near the end of one of the lower bales and his back and one arm against an upper bale; which would have been a safe position if the mules had walked steadily through the space. But they became frightened, either by the overhead timbers or by unknown cause, and made a lunge, .which threw the plaintiff upward, catching his shoulder and dragging him back, breaking his leg and otherwise injuring him.</p>

<p>Petition for injunction. Before Judge Reagan. Spalding superior court. February 28, 1903.</p> <p>Brewer presented his petition for injunction to prevent the enforcement of an execution issued against him by the tax-collector of Spalding county, for $200 tax on dealer in beer. Injunction was denied, and the plaintiff excepted. The facts were agreed on, as follows: The plaintiff does business in the city of Griffin. The Acme Brewing Company, of Macon, ships to him beer from its brewery, charging it to him and making out bills against him. When the beer is received in Griffin it is stored by the plaintiff. He takes orders for it, fills them) collects bills therefor in his name, and sends the money to the Acme Brewing Company. This company furnishes the teams for delivering the beer, and pays the plaintiff fifty cents per keg for his entire services in storing, selling, delivering, and collecting. This company has paid to the tax-collector of Bibb county the tax of $300 imposed upon its brewery by the tax act of 1902, sec. 2, par. 23. The plaintiff is not responsible for sales made to customers, but if there is a loss it is sustained by the company; and if any beer received by him is not sold, the loss is sustained by the company. The plaintiff contends that he is not subject to pay any further license tax than that paid by the Acme «company, but that he acts as its servant or agent. The tax-collector contends that the plaintiff is subject to that portion of the section of the tax act before mentioned which imposes a tax of $200 upon persons "engaged in the sale of beer.”</p>

<p>Appeal. Before Judge Butt. Talbot superior court. November l’ 1902.</p>

<p>Action for damages. Before Judge Griffin. City court of Yaldosta. September 9, 1902.</p> <p>The plaintiff alleged, that on a night in November he went to the defendant’s depot in the town of Lake Park, for the purpose of taking passage on its train; that when the train came in sight’a signal for it to stop was given, and the engineer blew the whistle in recognition of the signal; that when the train came to a stop the plaintiff, who was a dentist and carried a small box of tools and instruments, with as much haste as he’ could, undertook to get on the steps of the passenger-coach; that he set his box of instruments on the steps and reached to get hold of the hand-rail to board the train', when suddenly, without notice and without giving him sufficient time to get safely on the train, it moved off, causing him to miss the hand-rail, and before he could get out of the way he was struck by the corner of the passenger-coach, knocked to the ground,, and injured in manner described; and that the injuries were caused .solely by the negligence of the defendant’s servants in charge of’ the train, and he was guilty of no wrong or negligence whatever. It appeared from the testimony, that Lake Park was a flag-station the depot was not open, and there was no light save that afforded by a small fire that had been built on the ground near by. The> train was due to arrive about half past ten o’clock. When it blew for the station, the plaintiff snatched up his engine and head-rest,, and one Hackle waived a signal, to which the engineer responded with a short blow of the whistle. The plaintiff set down the two-articles mentioned, told Hackle to put them on the train, and went-back to the depot platform, a distance uf 18 or 20 feet, to get a little case and a telescope. The train hardly came to a stop; it did not stop long enough for the slack to get out of the cars. A porter jumped off as it slowed down, called out “ Lake Park,” and two persons alighted while it was rolling. The porter cried “all aboard”’ when they hit the ground, waved his light, and the train moved’, swiftly off. The plaintiff tried to get on at the place where the two-persons alighted. He set his instruments on the steps and reached for the hand-rail, expecting Hackle to hand him the other articles when he was on the platform of the car; but as he reached for the hand-rail the movement of the train had become so rapid that he missed the rail, and the corner of the coach struck his shoulder, knocked him to the ground, and injured him in manner described. When he set his instruments on, it was moving, but not so fast as to make him think he could not get on all right. It was moving-slowly, just commencing to move off; it had started. When he made the effort to get on, it seemed to move more rapidly, or, as-Hackle testified, “ about as fast as they could get off from a starting point.”</p>

<p>Motion to dismiss the writ of error.</p>

<p>Attachment. Before Judge Seabrook. Berrien superior court. October 14, 1902.</p>

<p>1. A partnership is not bound by a judgment rendered against a member thereof in a suit to which it was not a party and which was brought against such member in his individual capacity to dispossess him of property over which he had assumed control, claiming that the firm of which he was a member had title thereto.</p> <p>2. Under the facts brought to light on the trial of this case, a finding in favor of the prevailing party was wholly unwarranted, the evidence showing conclusively that such party never acquired title to the property in dispute, either by an actual or a constructive delivery of the same by the person who was in possession of it as owner.</p>

<p>Since several executions in favor of different persons can not, when levied on the same property, be met by a single claim, the plaintiffs in fi. fa. may, on an appeal by themselves from a justice’s court judgment finding the property not subject, move to dismiss the claim; and the effect of granting such motion is to make a final disposition of “ the case ” in their favor.</p>

<p>Equitable petition. Before Judge Dart. Coffee superior court. October 16, 1902.</p>

<p>Action for damages. Before Judge Dart. Ware superior court. December 30, 1902.</p>

<p>In a prosecution under the Penal Code, § 673, for encumbering personal property held under conditional purchase, it is necessary to show that the mortgage was given “with intent to defraud the vendor,” and if the mortgagor was ignorant of the fact that the title had been reserved, he could not properly be convicted of the offense.</p>

<p>Action for damages. Before Judge Hammond. City court of' Griffin. December term, 1902.</p> <p>The plaintiff, an elderly woman, was injured by falling to the 'ground from the steps of the defendant’s coach in which she had been a passenger from Atlanta to Griffin. She was found lying unconscious by the railroad track just before the point where it was crossed by the track of the Southern Railway Co. This point was about 250 yards before reaching the defendant’s passenger station in Griffin. According to the plaintiff’s testimony (which conflicted with that for the defendant), after the train was within the limits-of Griffin, as she knew by seeing the electric lights (it being on a December night), a porter walked through the Car in which the plaintiff was sitting, called out “ Griffin ! Griffin! ” opened the door and left it opened. . When the train stopped first after this announcement, the plaintiff arose, went out the front door of the car upon the platform, and down on the steps of the car. Thereupon the train moved suddenly and quickly forward, and she was thrown to the ground. When she went on the platform she saw no one, and had no warning not to get off. She thought she was getting off at the station, and had no notice that the train would stop for the crossing and then move again. The judge directed a verdict for the defendant.</p>

<p>Equitable petition. Before Judge Butt. Chattahoochee superior court. September 20,1902.</p>

<p>Complaint. Before Judge Adams. City court of Dublin. October 29, 1902.</p>

<p>1. In a suit for damages against a railroad company by one of its brakemen,, where the defense relied upon by the company was that the plaintiff’s injuries were caused by his disregard of a rule of the company, of which he had notice and by which he was bound, and which required him to use a “ stick ” in making all couplings, evidence that the conductor in charge of the train at the time the injuries were received, and other conductors of the defendant .company, under whom the plaintiff worked, knew that he had no-“stick” was properly excluded, there being nothing to impute such knowledge of the conductors to the defendant so as to give rise to the presumption that by acquiescence in the violation of the rule it had consented to-its abrogation.</p> <p>2. An assignment of error in a bill of exceptions, which complains that “ after the plaintiff had offered in evidence the rules of said company in reference to the conduct of the trains, and especially rule 164, plaintiff’s attorney offered to prove by the plaintiff . . the same facts above set forth, which evidence was objected to by the defendant and which objection of the defendant was sustained by the court and the evidence ruled out,” does not specify the evidence which was rejected, and the alleged error, with sufficient definiteness to permit of a ruling by this court.</p> <p>3. The rule laid down in Anderson v. Southern R. Go., 107 Ga. 501 (4), followed' and applied, and held applicable to cases where the assignment of error is. made for the first time in a bill of exceptions, as well as to cases where a. motion for a new trial is first filed in- the court below and error assigned in this court on the overruling of the motion.</p> <p>4. The charge requested, being too narrow, and not stating a correct principle-of law applicable to the case under consideration, was properly refused.</p>

<p>Action for damages. Before Judge Quincey. City court of Douglas. August 27, 1902.</p>

<p>The testimony of a party who offers himself as a witness in his own behalf should be construed most strongly against him when it is self-contradictory, vague, or equivocal; and in no event should any weight be given to statements which, considered in connection with admitted facts, amount to no more than bare conclusions of the witness, unwarranted by and inconsistent with such facts.</p>

<p>Action for damages. Before Judge Carter. City court of Baxley. December 3, 1902.</p>

<p>Trover. Before Judge Dart. Wayne superior court. December 29, 1902.</p>

<p>Habeas corpus. Before Judge Carter. City court'of Baxley. April 4, 1903.</p>

<p>1. Exceptions which go merely to the form of an indictment must be made by motion to quash, or demurrer in writing, before pleading to the merits. An indictment may be quashed on oral motion for any defect for which the judgment on it should be arrested.</p> <p>2. The omission of the words, “tending to debauch the morals,” in an accusation based upon the Penal Code, § 390, for a notorious act of public indecency, is not such a defect as can be reached by an oral motion to quash.</p> <p>3. The evidence, though not entirely satisfactory, is sufficient to bring the case within the rule, that, where there is any evidence to support the verdict, this-court will not interfere with the discretion of the trial judge in overruling the motion for a new trial.</p>

<p>Certiorari. Before Judge Reagan. Monroe superior court. May 18, 1903.</p>

<p>Accusation of larceny. Before Judge Adams. City court of Dublin. May 15, 1903.</p>

<p>Habeas corpus. Before Judge Reece. City court of Floyd county. May 29, 1903.</p>

<p>Whether based on a prima facie case of murder, on evidence of probable guilt, on the sickness or physical condition of the defendant, or on other cause, the granting or refusal of bail in capital cases is peculiarly within the discretion of the judge of the superior court, and will not be controlled unless it has been manifestly and flagrantly abused. There was no abuse of discretion in the present case.</p>

<p>1. Under the facts shown, there was no error in refusing to reopen the case, after both sides had closed, in order to allow the accused to make a statement.</p> <p>2. It was not error to admit evidence that the. accused was forced to make a track in the earth, when no evidence was admitted to show the appearance or character of this track, or whether it resembled any other, or how it compared with the tracks found about the place where the crime was committed.</p> <p>3. The evidence authorized the verdict.</p>

<p>Indictment for murder. Before Judge Fite. Dade superior court, May 20, 1903'.</p>

<p>Accusation of misdemeanor. Before Judge Reece. City court of Floyd county. June 29, 1903.</p> <p>The accusation charged that the plaintiff in error “-did ride in, on, and upon a certain railroad train of the Southern Railway Company, having concealed himself from the conductor of said train by hiding thereon for the purpose of avoiding the payment of fare and of stealing a ride thereon, and did then and there steal a ride thereon.” He demurred on the grounds, that the matters averred constitute no offense against the State; that it is not alleged that the Southern Railway Company is a domestic; corporation or was chartered in Georgia, or is domiciled therein; that riding on a train without payment of fare is not a theft, nor is such act in riding free the subject-matter of a theft; that “ the act is unconstitutional, because it seeks to punish the failure to pay fare, by line, imprisonment, and penal servitude, the fare being a debt due the carrier, . . because the train crew are police officers who can lawfully eject any person for failure to pay fare on demand; ” and that “ it is not .stated when, where, or how defendant was discovered, by whom or in what way he entered the train, where he was ejected, the distance traveled, or how he was concealed, or in what manner he hid himself from the train conductor on said train.” He also filed a special plea, that “the Southern Railway Company is not a citizen of, and has no Georgia charter. It is not in fact a domestic railway company, nor is it such in legal contemplation, nor is it a railway company within the legislative intent enunciated in the Acts of 1897, page 116 ; but is an alien, does not come within the provisions of said statute, and as such alien corporation is in no legal sense within said statutory provisions, takes nothing under said statute, and is not a railway company within the meaning of said penal statute.” The overruling of the demurrer and the plea were excepted to.</p>

<p>Indictment for murder. Before Judge Parker. Coffee superior court. June 18, 1903.</p> <p>The regular term of Coffee superior court began on the fourth Monday in March, 1903. On Friday, March 27, the judge announced orally that the court would take a recess until Monday, March 30. “Such oral announcement was.not noted on the minutes of said court by the clerk thereof, and there does not now appear oh the minutes of said court any entry or reference to the alleged recess aforementioned.” The regular panel of jurors were instructed to attend on the following Monday morning, and during the first week the judge also drew from the jury-box sixty additional jurors, who were summoned and required to appear on Monday, March 30. During the adjourned session the case against Cribb, charged with murder, was called. His counsel insisted that, there being no written order for a special term, the court was not legally organized, and, that objection being overruled, challenged the array on the ground that the panel had served and the talesmen had been drawn during the preceding week. All of these objections having been overruled, and a verdict of guilty without recommendation having been returned, the defendant made 'a motion for a new trial, and excepts to the judgment refusing -the same.</p>

<p>Indictment for forgery. Before Judge Roan, Fulton superior court. May 23, 1903.</p>

<p>1. Before a person charged with a particular crime can be lawfully found guilty thereof, it is necessary to establish the corpus delicti. This can not be done by the mere extra-judicial confession of the accused. There must be aliunde proof of the corpus delicti.</p> <p>2. In a criminal trial, evidence that the accused while confined in prison, upon being interrogated as to his conduct upon a certain occasion, stated that he had intended to attempt to overpower the jailer and effect his escape, is admissible as a circumstance against him.</p>

<p>This being a prosecution under the Penal Code, § 114, and the evidence not being sufficient to authorize a finding that the child was left in a destitute condition, it was error not to grant a new trial.</p>

<p>Accusation of selling liquor. Before Judge Sparks. City court of Brunswick. June 15, 1903.</p>

<p>Indictment for obstructing railroad. Before Judge Henry. Floyd superior court. June 18, 1903.</p>

<p>Indictment for false swearing. Before Judge Mitchell. Lowndessuperior court. June 26, 1903.</p>

<p>There may exist at the same time, applicable to the same locality, two laws, one general and the other local, prohibiting the sale of intoxicating liquors, and one making the sale may be indicted and punished under either law. It follows that the existence of a local law prohibiting the sale of liquor in a given place would not prevent a general law subsequently enacted, prohibiting the sale over the whole State within three miles of any church, from being operative in that locality ; and one guilty of the latter act may be indicted and punished under the general law.</p>

<p>The remedy of madamus may he invoked to compel the hoard of school commissioners of the City 'of Cartersville to give recognition to the rights of a member thereof whom his associates have, without legal authority, attempted to remove from office.</p>

<p>Action for damages. Before Judge Reece. City court of Floyd county. August 13, 1902.</p>

<p>Complaint. Before Judge Crisp. City court of Americus. November 9, 1902.</p>

<p>On the trial of an action of ejectment, where the plaintiff shows possession of the land in dispute under a recorded deed prior to any entry upon the land hy the defendant, and the defendant introduces no evidence whatever in support of his plea, it is not error to direct a verdict for the plaintiff.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. September 6, 1902.</p> <p>. The plaintiff was employed by the city to assist in unloading large water-pipes. While so engaged he was injured -by one of the pipes falling and striking him, “because of the negligence of said city in not furnishing derricks, ropes, and tools sufficient to lift and handle said pipes, and in not furnishing men enough to lift same. Said city knew that more men and derricks and ropes were needed for the safe handling of said pipe, but petitioner did not know and “had no way of knowing such facts. While petitioner was helping to unload said pipe from the wagon by sliding it down a plank or skid, which he was doing by and according to the direction and, •orders of the officers of said city in charge of said work, said officers had the plank or skid on which said pipe rested or supported knocked from under the pipe, and, not having enough men to Told it or ¿derricks and ropes to lift it, the pipe fell and struck petitioner.” He “ was without fault, and did nothing to contribute to the cause of said injuries; he was discharging his duties faithfully as directed by the officers of said city, and had no opportunity of knowing the dangers that he was exposed to; but said injuries were caused solely by the negligence of said city, who knew or ought to have known of the danger that petitioner was exposed to, and who failed to provide means to prevent injuries to petitioner.” The action was dismissed on demurrer.</p>

<p>Action for damages. Before Judge Calhoun. City court of. Atlanta. September 1, 1902.</p>

<p>Tailure to give written notice of the sanction of a petition for certiorari within the time prescribed by the Civil Code, § 4644, can not be excused on the ground of “ unavoidable cause,” when it appears that counsel for the plaintiff in certiorari took no steps towards serving notice for three months after the writ issued, and, though sick during the next thirty days, recovered his health a week before the beginning of the term of court to which the writ was returnable, but made no effort to perfect service until the seventeenth day of that term.</p>

Complaint. Before Judge Reid. City court of Atlanta. - October 21, 1902. Paul contracted with Thompson for the purchase of certain realty, agreeing to pay therefor $10,000 in three payments: $2,500 on or before April 12, 1901, $5,000 on July' 1, 1901, and $2,500 within a year thereafter. He paid $100 upon the signing of an option, $200 on April 12, $2,200 on May 2, and $5,000 on July 1,1901.

<p>Equitable petition. Before Judge Lumpkin. Fulton superior court. December 17, 1902.</p> <p>The petition was against John Oliver and the Gate City Oil Company. These facts appear from it: John Oliver is a brother of the petitioners. He resides in Georgia, where the defendant company has its principal place of business-, and they reside in New York. For a number of years all the brothers have been engaged together in various business enterprises in different parts of the country, and in all their enterprises their plan has been that each brother should be interested to the same extent as each of the others. John Oliver sold their stock in one of these enterprises, which was held by them as a firm under the name of Oliver Brothers, and of which he had the management, and organized the defendant company, subscribing to its stock in the firm name but causing the stock to be issued in equal proportions to the members of the firm. The petitioners left entirely to him the investment of the funds used for this purpose, and the management of the stock and of the company’s affairs. He was the president of the company. While occupying that position he sought and obtained from the petitioners options on their holdings in the company, at $110 per share, alleging as a reason for so doing that there was no longer any profit in the business; that the increased numher of small oil mills being built at cottonseed points rendered it more difficult for the larger companies to make dividends; that'there might be an opportunity to sell out the plant at a fair price, and he wanted to be in a position where it could be sold if such an opportunity offered, the sale to be for the equal benefit of all the stockholders of the company. In June, 1901, he mailed to them a statement of the affairs of the company, showing that it had been losing money that year. In view of this statement and of the fact that no dividends were declared, and not knowing, of the existence of certain assets omitted from the statement, and believing that the options were to be used for the purpose for which they were obtained, — “ that is, of selling the plant for an amount not less than $110 per share, and, if more than that amount, that the price still would inure to the benefit of all parties concerned,” they “ allowed the options to continue.” The petition alleges that by these options “John Oliver was in reality constituted the agent of the petitioners for the purpose of delivering over their shares of the capital stock of the . . company to such purchaser as might propose to purchase the plant upon terms which he might deem advantageous, netting the petitioners not less than $110 per share, and the petitioners sharing with the other stockholders upon equal terms in all amounts realized by such sale to be made by . . John Oliver as the agent of petitioners.” “ John Oliver wrote the option and fixed therein the valuation himself, which . . petitioners did not question, for the reason that it was considered simply as a minimum sum at which the stock would be parted with, [he] to get the best he could above that for [them] and for himself.” The options were without consideration. When they were given, or at the time of the last renewal of them, John Oliver had begun negotiations which he concealed from the petitioners and which resulted in the sale, in August, 1901, of the plant and a part of the other assets of the company to the Virginia-Carolina Chemical Company, for a sum which, together with the remaining assets, made the stock worth very much more than $110 per share. According to the petition, the true value at that time was $185 per share, and was admitted by John Oliver to be $140 per share. In this sale he acted for the defendant company and as its president. When the trade was about to be consummated he borrowed money to pay the petitioners for their stock, had it transferred to himself on the books of the company, and bought other stock until he and Fred. Oliver, another brother, were the only stockholders on the books; and, on the consummation of the sale, he bad the company to pay the stockholders of record $1.10 on the dollar of the stock, and used this money to repay the loan.</p> <p>The petition alleges that when John Oliver took to himself the stock of the petitioners under the options, he violated the agency which bad been created for him ; that he committed a fraud on them by misleading them as to the purpose for which he wanted the options, and in giving them incorrect information of the affairs of the company (he then acting as president and giving the information to them as stockholders), which information showed the company to be worth less money than it was, and misled them in the sale of their stock; and further, by withholding from them, while occupying to them a relation of trust, information to which they were entitled and which made their stock more valuable, using this information to his own gain and trading upon it as against them; and that this was done in pursuance of an -understanding between himself and Fred. Oliver, by which Fred. Oliver would reap a like advantage in dealing with the Charlotte Oil and Fertilizer Company, Fred. Oliver having procured from them, for similar purposes, options on their stock iu that company. It is alleged that on account of these facts the title to the stock in question did not pass out of the petitioners, and they are still stockholders of the defendant company; that the affairs of the company are controlled by John Oliver and Fred. Oliver, who claim to be the sole stockholders, to the exclusion of the petitioners; that they have demanded of John Oliver, as president of the company and as its majority stockholder, that he give them access to the books of the company and information as to its assets, and that the dividends to which they are entitled be paid to them, but he refuses to give them any information as to the condition of the company or to allow them a voice in its management, and proposes to distribute the assets, in a manner unknown to the petitioners, between himself and Fred. Oliver, who is a nonresident of the State; that John Oliver, acting in collusion with Fred. Oliver, has illegally and fraudulently caused a resolution to be entered on the minutes of the company, directing it to pay himself $50,000., for the alleged consideration that he had agreed to remain out of the oil business for five years; and that he is wasting the assets and mismanaging the affairs of the company in other respects stated. The petitioners aver their willingness to tender back and pay to John Oliver the money paid by him to them for their stock, provided he returns to the defendant company the money paid by it to him, ?•' and to render an account of said stock.” They pray for an order restraining 'the defendant company from paying out any money, and restraining John Oliver from disposing of the stock of the company, held or claimed by him; that the company be required to allow them access to its books of accounts, stock books, and minute book, for examination; that a receiver be appointed to take charge of the assets of the company and to wind up its affairs and distribute its assets; that John Oliver be required to return to them the shares of stock in question, and that the transfer of these shares on the books of the company be canceled; that the options be canceled; that the defendant corporation and John Oliver jointly and severally be required to account to them for the value of the stock, and that the petitioners have judgment for such sum as may be found to be due them on account of the stock and on account of any dividends declared on it; also for general relief. By an amendment they prayed that the options be reformed by inserting in them certain provisions which they alleged were understood by the parties to be a part of the contract but were omitted by mistake, to wit: that John Oliver will sell this stock at not less than $110 per share, and will account to the grantor of this option for any sum over that amount; this option being given to enable him to make a sale of the plant and property of said company.</p> <p>The defendants demurred to the petition, on the grounds: (1) Tt sets out no cause of action. (2) There is no equity in it. (3) The allegations do not entitle the plaintiffs to the relief prayed for. (4) It appears from the petition that the plaintiffs gave unconditional options, agreeing to sell the stock at a fixed price, and" that John Oliver availed himself of the options and paid for the stock in accordance with the terms thereof.; and no sufficient reason in law is alleged why the contract of sale should be reformed. (5) The allegations as to agency on the part of John Oliver to sell the stock for the benefit of the plaintiffs are at variance with the terms of the contract of sale, and can not be considered for the purpose of so varying the agreement; and the allegations on this subject do not entitle the plaintiffs to set aside the sales. (6) The petition contains no sufficient allegations of fraud which would authorize the rescission of the sale of the stock, and no allegations sufficient to create a resulting trust. (7) The allegations do not entitle the plaintiffs to a restraining order or a receiver. (8) There is a misjoinder of parties defendant, in that the allegations do not render the Gate City Oil Company a proper party. The court sustained the fourth ground of the demurrer and struck the prayer for reformation, but overruled the other grounds. The defendants excepted.</p>

<p>Equitable petition. Before Judge Brinson. Richmond superior court. October 24, 1902.</p>

<p>1. An heir at law may recover land on the prior possession of his ancestor, but it must appear that the ancestor was in possession at the date of his death under a bona fide claim of right. The allegations of the petition are not sufficient to authorize a recovery on this theory.</p> <p>2. A plaintiff in ejectment may also recover on his own prior possession against “ one who subsequently acquires possession of the land by mere entry, and without any lawful right whatever.” The averments of the petition are sufficient to show prior possession in the plaintiff.</p> <p>3. Recovery can not be had on prior possession alone against one who entered under a valid deed from a person in possession, though in fact he had no title, when the instrument was executed, unless it be shown that the grantee knew that the grantor had no authority to make the conveyance.</p> <p>4. It is otherwise, if the deed be void because based upon a promise of the grantee to do an illegal or immoral thing.</p> <p>5. A deed founded upon a promise of the grantee to live in the future in a state of concubinage-with the grantor is absolutely void.</p> <p>6. While the courts will not set aside such a conveyance after it is executed, at the instance of the grantor or any one in privity with him, it constitutes no reply to proof of prior possession by one not claiming under the grantor nor in privity with him.</p> <p>7. Under the decision in Watkins v. Nugen, ante 372, the instrument here involved is a deed, and the allegations in reference to fraud in the procurement of its execution are not sufficient to authorize the cancellation of the-conveyance on this ground.</p> <p>8. Though a deed be void because in fact based upon an illegal or immoral consideration, yet if it be valid upon its face, and a prima facie case for recovery under it can be made out by the grantee upon proof of possession in the grantor when the deed was executed, it constitutes a cloud upon the title of one having a right to recover upon prior possession.</p>

<p>Action on insurance policy. Before Judge Nottingham. City court of Macon. March 8, 1902.</p>

<p>Affidavit of illegality. Before Judge Gober. Cobb superior court. November 19, 1902.</p>

<p>Equitable petition. Before Judge Reagan. Pike superior co.urt. October 10, 1902.</p>

<p>A continuance, granted at the instance of the defendant when he still has time-to file an answer, does not extend that time so as to permit the filing of an answer after the expiration of the time regularly allowed by law.</p>

<p>Petition for revision of order allowing alimony. Before Judge Spence. Worth superior court. January 27, 1903.</p>

<p>Action for damages. Before Judge Spence. Calhoun superior court. December 10, 1902.</p>

<p>Certiorari. Before Judge Roberts. Pulaski superior court. October 9, 1902.</p>

<p>Ejectment. Before Judge Dart. Ware superior court. November 3, 1902.</p> <p>Cited by counsel, in addition to citations appearing in the opinion of the court: Civil Code, §§5164, 5167, 5174, 5219, 5239, 5240; 1 Gr. Ev. § 558; Georgia, Reports: 26/582; 30/391; 53/685; 70/86(6); 81/93; 103/435; 114/171.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. October 24, 1902.</p>

<p>Motion to open default. Before Judge Reid. City court of Atlanta. October 18, 1902.</p>

<p>1. Where an agent has authority to employ a suhagent to do the work of the principal, the agent is not liable for the negligence of the subagent in the performance of the work, if due care has been used in his selection.</p> <p>2. A charge embodying an erroneous principle and one which has a tendency to injure the losing party is not cured by a subsequent instruction embodying a correct statement of the law, when attention is not called to the previous ■charge. A charge containing two distinct propositions directly conflicting the one with the other is calculated to leave the jury in such a confused ■condition of mind that they can not render an intelligent verdict.</p>

<p>1. In a suit for the purchase-price of goods, where the documentary evidence constitutes a clear and unambiguous contract of purchase and sale, it is not error for the court to so instruct the Jury.</p> <p>2. In the absence of an agreement to the contrary, delivery to a carrier of goods ordered by a purchaser living in a distant city is delivery to the purchaser ; and the seller is not liable for any damage to the goods after they have been so delivered to the carrier.</p>

<p>Action for damages. Before Judge Lumpkin. Fulton superior court. November 15, 1902.</p>

<p>1. Where a partnership, alleged to be composed of two named persons, was sued in a justice’s court, and only one of them was served, who pleaded that he was not a member of the partnership, and a verdict was found for the defendant, a certiorari bond given by the plaintiff should have been made payable to the individual served.</p> <p>2. Where in such a case the bond was made payable to the partnership, the writ of certiorari was void, because issued without a proper bond, and the bond was not amendable.</p>

Complaint. Before Judge Reid. City court of Atlanta. November 1,1902. Prince was manager for an insurance company, for Georgia and other States. Brinsfield was his cashier. Two drafts, payable to “ James T. Prince, manager,” were indorsed by Brinsfield, thus: “ James T. Prince, manager, by Kelly H. Brinsfield, cashier,” and were cashed by Thrower, who deposited them with the Exchange Bank to his credit.

<p>Appeal. Before Judge Lumpkin. Fulton superior court. November 26, 1902.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. December 6, 1902.</p>

<p>Action for damages. Before Judge Reid. City court of At* lanta. December 20, 1902.</p>

Action for breach of contract. Before Judge Reid. City court-of Atlanta. December 11,1902. The Eoote & Davies Company sued the Poland Paper Company for damages on account of the alleged breach of a contract for the-sale and delivery of a car-load of paper.

<p>Complaint. Before Judge Reid. City court of Atlanta. October 17, 1902.</p>

<p>Action for damages — appeal. Before Judge Lumpkin. Eulton superior court. January 20, 1903.</p>

<p>Even if the instrument sued on can not be construed as a valid statutory administrator’s bond, it was good as a voluntary obligation ; and treating it as such, the petition set forth a cause of action.</p>

<p>Expenses incurred by a litigant in taking depositions of witnesses before a commissioner in the manner provided for by statute are not to be regarded as costs which may be taxed against the opposite party in the event he is cast in the suit.</p>

<p>Petition for partition. Before Judge Lumpkin. Fulton superior court. January 19, 1903.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. November 10, 1902.</p>

<p>Petition for injunction. Before Judge Lumpkin. Eulton superior court. April 18, 1903.</p> <p>The petition of the Georgia Railroad and Banking Company against the City of Atlanta alleges, in brief, that the plaintiff claims title to and possession by its tenants of a strip of land in the city, between the tracks of its railroad on the north and the lands of the Eulton Bag and Cotton Mills and others on the south; that it acquired title to this strip in 1844, by deed of Benjamin Little conveying to it land of which this was a part, and has never parted with its title; that the strip is necessary to it and to its tenants as a part of its railroad; that in 1902 it undertook to enclose the strip with a fence, when the city engineer objected and threatened to prevent with force the work of enclosing; that the plaintiff thereupon desisted, and presented to the city a petition setting forth these facts and praying that the city desist from interference with the plaintiff’s rights as proprietor, but the city refused the petition and asserted the city’s claim to the strip, the claim being that the strip is a street of the city, known as “ Badger street; ” and this claim of the city and the entry of the strip on the map of the city as “ Badger street ” are a cloud on the plaintiff’s title to the land. Waiving discovery, the plaintiff prays, that the city be enjoined from interfering with it and its tenants in enclosing the strip and in exercising the rights of an owner in fee; that the plaintiff be decreed to have title thereto against the city; for cancellation of all writings and documents by which the city makes claim to the strip; and for general relief. By amendment the plaintiff sets out a copy of an ordinance of the city, prohibiting obstruction of the streets, and alleges that enclosing thestrip by the plaintiff would result in arrest and in a multiplicity of prosecutions under this ordinance; also that the action of the city in interfering with the plaintiff in enclosing the strip is a taking of the plaintiff’s property without due process of law. The defendant demurred generally to the petition, and filed an answer which is not in the record sent to the Supreme Court.</p> <p>At the hearing “ it was admitted as a fact, between counsel for the parties, that the Georgia Railroad and Banking Company owned a lot of land at this point, containing a number of acres, originally owned by Benjamin Little; that the . . company sold off portions of this land to the south of its railroad tracks; the deeds of conveyance bounding lots conveyed nearly all the right of way of the . . company, and the subsequent deeds of conveyance from the original purchasers to the present abutting owners gave as the northern boundary the right of way of the Georgia Railroad and Banking Company; these deeds of conveyance were dated something like twenty years ago; ” also that there appears on the building of theBeutell Manufacturing Company, indicated on the plat, a sign, bearing the words “Badger street,” a foot and a half or two feet long, with letters three inches high; that this sign was put there by the city, at a date unknown ; “ the buildings facing towards the railroad between Factory street and Powell street have numbers put thereon, the numbers being the city numbers and being in letters between two and three inches high; the buildings between Wyman and Factory streets have numbers placed on them by the property owners, being letters from three to four inches high. It is not known when this numbering was done. The Beutell Manufacturing Company also has numbers on it, put there by the property owners.” The buildings mentioned front on the strip in question, and some of them are residences. Powell, Wyman (or Weyman), and Factory streets intersect it. Its width is about fifty feet. It appears from the evidence that it has never been enclosed. From time to time the railroad company built side-tracks parallel to its main track, until the-distance between the southernmost tract (which was built in 1900) and the property line south of it was about twenty-four feet. Spur-tracks extend across this space, one of them to within five feet of the abutting property and another into the factory yard of the 'Fulton Bag and Cotton Mills. For upwards of twenty-three years the strip has been used as a place for the unloading and delivery of freight from cars standing on the side-tracks, and as a driveway for wagons and drays of cus-' tomers receiving freight. The railroad company from time to time ditched it, put cinders on it, and otherwise improved its condition as a driveway for the benefit of the company’s customers. Stones on which are the letters “ Ga. E. E.,” and which have the appearance of having stood for many years, are at various points along the line of the abutting property at the south of the strip. Officers of the company testified that the strip had never been worked or kept in repair by the city; that its use by the public or persons passing over it was merely permissive on the part of the company; that in leaving it open there was no intention to dedicate it to public use as a street, and that so far as they knew the city had never exercised jurisdiction over it as a street and had not laid any claim to it until recently, when the city engineer interposed objection to the construction of a fence across it. The defendant introduced in evidence a map made in 1893, in which this strip was designated as “ Badger street,” and there was evidence that as far back as ten years ago a sign bearing that name was put up on the “ street.” According to the testimony of persons who have resided in the neighborhood for many years — some of them as long as thirty-five years, the strip has been used continuously during all that time by the public generally as a thoroughfare and “ in all the ways in which a street is used and occupied.” The court refused an injunction, and the plaintiff excepted.”</p>

<p>Levy and claim. Before A. F. Daley, judge pro hac vice. Washington superior court. September 10, 1902.</p>

<p>Petition for injunction. Before Judge Russell. Gwinnett superior court.. June 3, 1903.</p>

<p>1. A general complaint in a bill of exceptions that a trial judge erred in directing a verdict for the plaintiff is to be understood as meaning the judge committed error in holding that the evidence, viewed in the light of the pleadings, demanded a finding against the defendant; and such complaint, thus interpreted, constitutes a sufficiently specific assignment of error, if the transcript of the record discloses upon what issues the case was tried.</p> <p>2. Even upon the assumption that it is lawful in this State to exact the payment of eight per cent, interest in advance, by way of “ discount,” on a loan for a term of one year, the transaction disclosed by the evidence in the present case was clearly violative of the statutes against usury.</p>

<p>Equitable petition. Before Judge Lumpkin. Eulton superior court. October 29, 1902.</p>

<p>1. Prior to the act approved December 13, 1902 (Acts 1902, p. 117), if a defendant in a suit brought in the city court of Atlanta failed to file his defense on or before the first day of the term to which the suit was returnable, he lost his right to file any defense to the suit, and the judge had no authority to allow him to do so.</p> <p>2. Where the plaintiff in such a' case entered into an agreement, which was entirely devoid of consideration, that a plea and demurrer which were in reality filed on the second day of the term might be filed as of date the first day of the term, such agreement was revocable at the will of the party making it.</p> <p>5. Suit was filed against the Southern Bell Telephone and Telegraph Company, and the defendant properly served. The return of service recited that the officer had “ served the defendant, Southern Bell Telephone Company,” by serving its superintendent, naming him. Subsequently the return was, by leave of court, amended so as to set out the name of the defendant corporation correctly. Seld, that the original return was valid, and did not need amendment; and the defendant was not excused from filing its defense until after the return had been amended.</p> <p>4. In a suit for unliquidated damages, brought in the city court of Atlanta, where the defendant fails to file any defense within the time required by law, he is precluded from contesting his liability as set out in the petition, and the only question to be determined by the jury is the amount of damage which the plaintiff has sustained.</p> <p>6. Where a petition is ambiguous in failing to make clear whether the cause of action declared on is one sóunding in contract or in tort, but no demurrer is filed, and the allegations and prayers of the petition, taken all together, manifest that it was the intention of the plaintiff to sue for a tort growing out of the breach of a contract, it is not error to treat the suit as an action ex delicto, and to charge, where the evidence warrants it, the law as to punitive-damages. Nor is it cause for a reversal in such a case, where no plea has been filed within the time required by law, to charge that in any event the plaintiff would be entitled to nominal damages, it clearly appearing that such a charge, whether strictly correct or not, could not have been harmful to the defendant.</p> <p>6. In the trial of an action for damages growing out of the breach of a duty arising from a contract, where, owing to the defendant’s failure to plead, his liability is incontestably established, it is not error to charge the jury that the plaintiff is entitled to recover for all the' damage sustained by him up to the time of the trial. ,</p>

<p>1. The fact that a petition alleges that the terms on which the plaintiff was employed to sell on commission are stated in a personal letter from H., who was at the time president of the defendant, is no reason for sustaining a motion to dismiss, made at the trial term.</p> <p>2. Even though the contract was between the plaintiff and H. individually, the company could adopt the terms contained in the correspondence. Fla. R. Co. v. Varnedoe, 81 Ga. 175 (7).</p> <p>3. The petition showed employment and performance of services, and set forth a cause of action, even if the letters be ignored.</p>

<p>Equitable petition. Before Judge Lumpkin. Fulton superior court. December 19, 1902.</p>

<p>Affidavit of illegality — appeal. Before Judge Lumpkin. Fulton superior court. November 26, 1902.</p>

Action for damages. Before Judge Lumpkin. Fulton superior court. December 19, 1903. The action was for the negligent killing of the plaintiff’s dog by a car of the defendant. A general demurrer to the petition was sustained, and the plaintiff excepted.

<p>Complaint. Before Judge Lumpkin. . Fulton superior court. January 14, 1903.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. December 16, 1902.</p>

<p>1. The evidence, while conflicting, sustained the verdict.</p> <p>2. Complaints in a motion for a new trial that the verdict is contrary to specified portions of the charge of the court are in. effect complaints that the verdict is contrary to law.</p> <p>3. In an action for damages to a building, brought by the owner thereof against an independent contractor, in which it was alleged that on account of the negligence of the defendant, in making excavations on land adjoining the plaintiff’s building, the plaintiff’s land was not given the proper lateral support, in consequence of which the wall of the building collapsed, it was not error for the court, in charging as to the provisions of the Civil Code, § 3048, to instruct the jury that it was the duty of the defendant to use ordinary care to sustain “ the land ” of the plaintiff, without instructing them in the same ■connection as to the duty of the plaintiff to protect the superincumbent weight •of the building.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. January 16, 1903.</p>

<p>. Actiou on forthcoming bond. Before Judge Candler, Campbell superior court. August 11, 1902.</p>

<p>Exceptions to auditor’s report. Before Judge Candler. Campbell superior court. -August 11, 1902.</p>

<p>1. .Where the judge states fully and accurately the law applicable to the issues involved, the mere failure to call the attention of the jury in specific terms to the contentions of the parties as shown by the pleadings, and to explain these contentions to them, will not, unlesS~it is plain that the omission resulted in injury to the losing party, require the granting of a new trial.</p> <p>2. The judge can not tell the jury that particular acts constitute negligence or would preclude a recovery, unless the acts are made by law to constitute negligence per se.</p> <p>3. The evidence authorized the verdict, and there was no error requiring the granting of a new trial.</p>

<p>"Where one of the parties to a ease brings the same to this court by bill of exceptions and the adverse party sues out a cross-bill of exceptions, and the judgment of the court below does not leave the case to be retried, the cross-bill of . exceptions can not be prosecuted after the withdrawal of the main bill, but must be dismissed.</p>

<p>Action upon contract. Before Judge Evans. Johnson superior court. September 15,1902.</p> <p>The suit was for the breach of a contract for the sale and delivery of cotton. The defendants demurred on the grounds, that no cause of action was stated; that the contract was void under the statute of frauds; that it was wanting in mutuality and in consideration ; and that it was void for uncertainty. The demurrer was sustained, and the plaintiffs excepted. The petition alleged, that E. M. Redwine, one of the defendants, was general manager of a farming business conducted by a firm composed of himself and of the other defendants, and as such had authority to make and did make a certain contract in writing (a copy of which was attached to the petition), selling to Arline and Mason 100 bales of cotton at the price of 7.43 cents per pound, and that “ though the contract does not specify the weight of said bales of cotton, they were to weigh 500 pounds each;” that at the execution of the contract the parties contemplated an actual delivery of the' cotton in compliance with the terms of the contract; that Arline and Mason, for a valuable consideration, made a written assignment of the contract-to the plaintiffs; and that the defendants failed and refused to carry out the contract or any part of it, though the plaintiffs offered to pay them the price agreed upon, and demanded delivéry in the terms of the contract; that at the date agreed for the delivery of the cotton, cotton was selling in the market for 10 cents per pound; and that by reason of the refusal on the part of the defendants to comply with the contract the plaintiffs were damaged in the sum of $1,285. The contract attached to the petition was as follows: “Wrightsville, Ga., July 1st.</p> <p>“ We have this day sold through ... to Mess. Arline & Mason of Wrightsville . . bales of compressed cotton free on board ship at Savannah, Ga., viz. one hundred bales of cotton to be delivered September, Bales ....... at 7.43 October and November Bales a.....at Shipment September, October, and November.</p> <p>“This sale is made subject to Liverpool classification and the rules of the Savannah Cotton Exchange, with the following modifications, viz.: Cotton to be taken Deep Creek Landing, deducting freight and compressing, this sale is made on basis mid. If we so desire, we can have said cotton to be ginned on the round bale gins at the Wrightsville Gin and Cotton Co., and said price to be 7.93 in Savh. on basis middling.</p> <p>“ It is agreed that any differences or disputes which may arise shall be settled by arbitration as provided by said rules.</p> <p>......Broker. E. M. Redwine, Mangr., of Wrightsville, Ga.”</p>

<p>Petition for alimony. Before'Judge Roan. Campbell superior court. June 1, 1903.</p>

<p>Trover. Before Judge Evans. ' Bulloch superior court. November 5, 1902.</p>

<p>Equitable petition. Before Judge Evans. ■ Tattnall superior court. December 15, 1902.</p>

<p>Equitable petition. Before Judge Evans. Washington superior court. January 3,1903.</p>

<p>Certiorari. Before Judge Evans. Tattnall superior court. January 1,1903.</p> <p>Brazell & Alexander sued Newsome & Dutton, in the city court of Tattnall county, on an open account, a part of which was for a half-barrel of glue and certain spirit barrels and bundles of hoop iron. The trial resulted in a verdict against the defendants, and by petition for certiorari they complained that the verdict was contrary to law and the evidence, and that the court erred in certain rulings. The certiorari was overruled, and they excepted. From the evidence it appeared that the plaintiffs sold to the defendants a turpentine plant and other property, described in a deed executed by the vendors to the vendees at the time of the sale. The articles mentioned above were on the premises at that time, and the defendants contended at the trial that they were a part of the property sold. The plaintiffs denied that they were included in the sale. The deed described the property sold as “ the real and personal property and leases constituting the naval stores farming and manufacturing plant of the parties of the first part and located' in Tattnall county, Georgia, to wit: ” certain land described, “ and also all the following described personal property located on the said tract of land . . used and intended to be used by the parties of the first part, in and about their naval store business carried on in Tattnall county, Georgia.” Here followed a list which included shops, tools, stills, dip barrels, “ and all heading staves, barrels, and other utensils, implements, and material located on said naval stores farm,” certain horses, wagons, etc., and certain leases; after which was this clause: “It is the purpose and intention of the parties of the first part by this conveyance to convey and transfer to the parties of the second part all their naval stores farm and business in Tattnall county, Ga., except certain dip and rosin and turpentine manufactured or now in the process of manufacture, and two leases which are not described in this indenture ; and this conveyance and transfer is intended to cover and convey the entire naval stores plant and business aforesaid, whether the same be herein particularly described or not, with the exception of the items hereinbefore set out.” Brazell, one of the plaintiffs, testified: “ The articles we are suing for we called stock in trade. We did not intend to sell these articles, but we did not tell Newsome & Dutton so. The contract between us covered the articles we are suing for, or could cover them ; hence the contract does not state the truth of the trade.” This testimony was objected to as varying the written contract, and as not authorized by the pleadings ; and the overruling of the objection was one of the grounds of the petition for certiorari. • •</p>

<p>Motion to declare mistrial. Before Judge Brinson. Richmond superior court. October 29, 1902.</p>

<p>Notes, accounts, and other choses in action in the hands of an agent of a non-resident corporation doing business in a municipal corporation of this State, and which were received in the course of the business so conducted, are taxable by such municipal corporation, it having general statutory authority to tax property of every kind situated within its limits.</p>

<p>Complaint. Before Judge Eve. City court of Richmond county. November 22, 1902.</p>

<p>1. An indictment for selling liquor without a license, which substantially conforms to £he terms and language of the Penal Code, §431, is. not demurrable ■ upon the ground that it does not sufficiently set .out the act constituting the alleged offense; nor on the ground that it fails to state the kind, quantity, or “the value of the intoxicants sold, and to whom they were sold, and whether they were sold on the premises and drunk on the premises. ” Sweeney v. State, 16 Ga. 467 ; Stringfield v. State, 25 Ga. 474; Williams v. State,. 89 Ga. 483; Redding v. State, 91 Ga. 231; Newman v. State, 101 Ga. 534; Hancock v. State, 114 Ga. 439.</p> <p>2. An indictment, founded upon the Penal Code, § 431, which charges generally the sale of wine without a license, is not demurrable because it does not allege that the same was not domestic wine. Hancock v. State, supra.</p> <p>3. A demurrer to an indictment, which alleges that separate and distinct offenses, for which, separate and distinct penalties.are provided, are improperly joined therein, without indicating what such separate and distinct offenses are, presents no question for determination by the court.</p> <p>4. The sale of intoxicating liquors not being prohibited in Screven county, one-can, in that county, commit the offense of selling such liquors without a license.</p> <p>5. Even if the local act of March 2,1874 (Acts 1874, p. 403), is still of force inScreven county, the indictment was properly based upon the PenaPCode,. . §431.</p> <p><3. The questions made by a plea in abatement to an indictment which has been transferred from a superior to a city court are triable in the latter court, unless some issue arises thereunder which involves the correctness of the minutes of the superior court.</p> <p>7. When in the trial of a criminal case before a judge, without a jury, a plea in abatement is filed, and no evidence is offered in support of the plea, the proper practice is to enter a judgment overruling such plea; but where, instead of doing this, the judge passes an order striking the plea, such technical error affords no cause for a reversal of the judgment in the case.</p> <p>8. While it would have been more in accordance with good practice for the State to have traversed the plea in abatement and thus formed an issue thereon, yet, as the court afforded the accused a fair and full opportunity to introduce-evidence in support of its allegations, which he refused to do, announcing that he “would rely upon the legal proposition that said court had no authority to try said plea,” the failure of the State to traverse the plea is not cause for reversing the judgment.</p> <p>9. The allegations contained in a plea in abatement to an indictment, although sworn to, are not to be taken as being true because such plea is not traversed ; they must be supported by evidence before they can be sustained.</p>

<p>1. Where a water right was conveyed to a mining company without the use of the words “assigns” or “successors,” the company acquired an interest, which it could convey to a subsequent purchaser.</p> <p>2. Where the mining company owned only a leasehold interest in land and obtained from an adjacent owner the right to pump water from his property as long as the mine was operated on the leasehold estate, the water privilege was not an easement in gross, personal to the company, but was appurtenant to the mine, and passed to a subsequent purchaser of the mining company’s interest.</p> <p>3. In consideration of bettering the chance of getting iron ore on Y’s farm mined and sold, he granted to a mining company a waterprivilege, with the right to locate their pump line over his land to their washer to be located on tbe south side of Duke’s hill, such privilege “ to continue as long as the said company shall mine iron ore and use water from said location, then they must move their properly and vacate said premises.” Held, that the water easement was defeasible, and terminated when the mining company ceased operations on Duke’s hill and moved its washer to an adjoining mine.</p> <p>4. The evidence was in conflict as to whether the defendant was estopped because he knew of plaintiff’s construction of the conveyance, and writh such knowledge permitted it to expend large sums of money without objection ; and this court can not interfere with the finding of the trial judge thereon.</p>

<p>1. In a suit for a breach of warranty of personal property it is not error for the court to charge Civil Code, § 3555, to the effect that in ordinary sales there is an implied warranty that the article sold is merchantable, and suitable for the use intended.</p> <p>2. While the common law is presumed to be of force in most of the American States, if either party claims that the statute or common-law rule obtaining in such State is different from the law laid down in the code, he must, by pleading, evidence, or a request to charge, call the attention of the court to such difference.</p> <p>3. In the case at bar it seems that the law of Wisconsin as to warranty is sub- ■ stantially the same as that contained in the Civil Code, §3555.</p> <p>4. The evidence objected to was admissible under the plea of failure of consid-. eration.</p> <p>5. The evidence for the defendant was sufficient to support a finding in his favor; and even though that of the plaintiff was in its nature stronger and more satisfactory, we have no right to interfere with the verdict.</p>

<p>Complaint for laud. Before Judge Candler. DeKalb superior court. October 21, 1902.</p> <p>Green, as administrator of John M. Hambrick, brought an action against R. M. Hambrick for the recovery of a certain lot of land. The claim of title was based, in one count, on possession by the decedent, for more than twenty years, and, in another count, on possession by him under written evidence of title for seven years. The alleged written evidence of title consisted of an application of the decedent, in 1869, to have this land set apart as a homestead ; the plat of the county surveyor, showing the survey of the lot and the marking of the lines around it, with the certificate of the surveyor stating that the plat was a correct plat of the lands of the applicant, and valuing the land at $1,000 ; the order of the ordinary approving the application, and his order approving the return of the surveyor. At the trial these proceedings were introduced in evidence by the pinifftiff; and h'e proved that the decedent had lived ■on the land in question from about the year 1855 until his death, which occurred in 1900, and had left a widow, who was his wife when the homestead was set apart, and who was alive at the time ■of the trial. The plaintiff offered in evidence certified copies of an application of the widow for a year’s support out of the estate of the decedent, with the return of the appraisers thereon, and the •order of the ordinary making the return the judgment of the court, which return set aside to her certain personalty and a named amount in money, to be paid out of the decedent’s estate of realty; but, on objection by the defendant on the ground that these papers were irrelevant, the court refused to admit them. At the conclusion of the plaintiff’s evidence the court granted a nonsuit. The plaintiff excepted.</p>

<p>Equitiable petition. Before Judge Evans. Emanuel superior court. October 21, 1902.</p> <p>The petition was for partition between the plaintiff and the defendants as tenants in common under a deed (the material parts of which are set out in the following opinion), and to have the defendants account for rents and profits of the land conveyed, which they had received after the death of the life-tenant, the plaintiff claiming an undivided interest therein as sole heir and representative of his wife, Martha Lewis, one of the children named in the deed, who had died childless before the death of the life-tenant. The defendants claimed the property as remaindermen and purchasers from" remaindermen under the deed. The petition was dismissed on demurrer, the court holding that Martha Lewis took only a contingent remainder under the deed, which did not pass to the plaintiff. The plaintiff excepted.</p>

<p>Complaint. Before Judge Bobiuson. ■ City court of Wrights-ville. August 18, 1902.</p>

<p>Complaint. Before Judge Evans. Bulloch superior court. November 5,1902.</p>

<p>1. The rules of diligence must be adjusted to the character of work in which the plaintiff is engaged.</p> <p>2. Where one is employed in a work which necessarily involves more or less • danger, he assumes the risks ordinarily and usually incident thereto ; but he has no right to subject himself to unnecessary risks or unusual dangers, even when ordered so to do.</p> <p>3. What a man of ordinary prudence would do when employed in dangerous work is the standard by which the law measures the-diligenee or negligence of other employees similarly engaged.</p> <p>4. Where one engaged in dangerous work is directed by his superior to perform a given act, he may without negligence obey such direction, if the danger incident thereto is not unusual, nor the risk beyond that necessarily contemplated in his employment.</p> <p>5. Where a train-hand is directed to assist in making a “running drill,” his obedience will not render him guilty of contributory negligence, if the circumstances of making the uncoupling are such that a prudent man engaged in the same employment would assume the risk of such act.</p> <p>6. There is a difference between issue and evidence, and the requirement that the judge shall instruct the jury as to all the issues raised does not impose on him the duty of singling out particular portions of the evidence and charging thereon.</p> <p>7. In the absence of a special request the judge is not bound to instruct the jury as to the effect of an admission by either pgrty to the record.</p> <p>8. There was no error in the rulings of the court, or in the charge to the jury.</p>

<p>Complaint. Before Judge Taliaferro. City court of Sanders-ville. January 17, 1903.</p>

<p>1. It is not a ground for a new trial that the court, while giving a proper charge to the jury, did not also give in charge another principle of law which would have been appropriate. Roberts v. State, 114 Ga. 450.</p> <p>2. In an action upon a life-insurance policy, by the terms of which the insured agreed that no benefit whatever should he paid upon his death should he commit suicide within two years after the date of the policy, whether at the time of committing suicide he should he either sane or insane, and the evidence was sufficient to warrant a finding that, in less than the time mentioned after the date of the policy, the insured took his own life, it was not error for the court to charge the jury that if the insured “destroyed liis life by shooting himself, and at the time he shot himself did it voluntarily and intended to kill himself, then it would he immaterial whether at the time he was sane or insane, or whether his mental faculties were so impaired as to destroy liis moral responsibility, and the plaintiffs in this case could not recover.”</p> <p>S. There was no error in any of the charges complained of ; the evidence authorized, if it did not demand, the verdict returned, and the motion for a new trial was properly overruled.</p>

<p>Warrant to evict tenant. Before Judge Evans. Washington superior court. September 27, 1902.</p>

<p>1. The general rule is that a municipal corporation can not acquire real estate beyond its territorial limits or lawfully perform any act beyond such limits, unless the power to do so is expressly given by law.</p> <p>2. Upon reason and authority the acquisition of land for the purpose of perfecting a system of drainage or sewerage and the construction of drains and sewers as a part of such system should be an exception to the general rule.</p> <p>3. The decision, in Loyd v. Columbus, 90 Ga. 20, which rules to the contrary o£ the proposition stated in the headnote last preceding, criticised and doubted.</p> <p>4. Where an act is done by the officers and agents of a municipal corporation,, which is within the corporate power and might have been lawfully accomplished had the municipal authorities proceeded accor’ding to law, the corporation will be liable for the consequences of an act of such officers or agents proceeding contrary to law or in an irregular manner. Aliter, where-the act complained of lies wholly outside of the general or special powers of the corporation.</p> <p>5. If the authorities of a city are authorized to construct a drain and sewer in a particular manner, after complying with given formalities, the city wilt be answerable in damages to a party sustaining injury as a consequence of the construction of such drain or sewer, though the method prescribed is not followed.in making the construction.</p> <p>6. If the authorities of a city authorized to construct drains and sewers beyond its limits construct the same without complying- with the formalities prescribed by the charter, or, after the drain or sewer is completed, take charge-of the same and regulate it as a part of the system of drainage and sewerage 1 of the city, the city, when sued for an injury resulting from the construction and maintenance of such drain or sewer, can not defend by alleging its want, of authority to do the act complained of.</p> <p>7. Under the act of December 8, 1880 (Acts 1880-81, p. 365), relating to the organization, powers, and duties of the board of health of the City of Augusta, the city authorities have the right to construct drains and sewers outside the limits of the city, after compliance with the formalities prescribed in the act.</p> <p>8. If a municipal corporation negligently constructs a drain or sewer, or maintains the same in such a manner as to constitute a nuisance it is liable in damages to any one injured thereby.</p> <p>9. If the nuisance thus resulting is of a permanent nature the person injured is entitled to compensation for all damages, both past and prospective. If the-nuisance is not of a permanent character, but one which may be abated at any time, and upon its abatement no further injury will result, suit may be brought for the recovery only of those damages which have been actually sustained within the period prescribed by the statute of limitations before the suit is brought.</p> <p>10. Even though a drain or sewer be properly constructed and properly maintained, if it results in damage to the property of a private citizen, he is entitled to compensation for such damage. In such a case the measure of damages for injury to the freehold is the difference in market value before and after the injury was inflicted.</p> <p>(a) The petition in the present case, properly construed sought to recover damages both for permanent injury to the freehold estate, resulting from the mere presence of the ditch in front of plaintiff’s property, though it be properly constructed and properly maintained, as well as actual damages sustained as a consequence of the ditch having been maintained, during the time-specified in the petition, in such a manner as to constitute a nuisance.</p> <p>(5) Evidence of unsightliness and general appearance of the ditch is admissible on the question of diminution in market value.</p> <p>(c) Evidence of injury to shade-trees by the construction of the ditch is also, admissible for this purpose.</p> <p>11. The act of December 20,1899, providing that notice of the time, place, and extent of injuries to persons or property, claimed to have been inflicted by a municipal corporation, shall be given to its officers before suit is brought, does not require absolute exactness of description, but simply that information as to the matters referred to may be given with sufficient definiteness to enable the city authorities to examine into the alleged injuries and determine whether the claim shall be adjusted without suit.</p> <p>12. If the notice and the petition correspond in all substantial respects as to the matters information of which is required to be given, the variance is immaterial.</p> <p>(а) A statement in a notice claiming damages for injury to shade-trees “set out by the owner in front of his property ” does not materially vary from an allegation in the petition claiming damages for injury to shade-trees which the plaintiff had “planted in the enclosure on his premises.”</p> <p>(б) Semble that objection on the ground of variance should be taken advantage of by special demurrer, the notice being attached to the petition as an exhibit.</p> <p>13. Title t.o a portion of a public street or road can not be acquired by prescription. Nor can the right to have a ditch constructed in a public street or road, for the purpose of carrying off surface-water, remain in an unchanged condition, be acquired by prescription.</p>

<p>Habeas corpus. Before Judge Adams. City court of Wrights-ville. June 13, 1903.</p>

<p>Where a mining corporation made a contract with an insurance company, wkere- ■ by the latter agreed to defend all suits brought against the former for personal injuries and, up to a certain amount, to pay the judgments therein; and where after making such contract the mining corporation made a contract with an attorney at law, whereby it retained him generally and agreed to employ him in all cases in which it was interested which might “ come up,” the attorney having no notice of the contract with the insurance company; and where a suit for personal injuries was brought against the corporation, and the attorney offered his services in compliance with his contract, but such services were refused by the company, held: (1) that the mining corporation was liabl^ to the attorney for such damages as he sustained by reason of the breach of the contract; and (2) that it was not necessary for the attorney to await the conclusion of the case in which he had tendered his services, before he brought his suit for damages for breach of the contract.</p>

Action for damages. Before Judge Brinson. McDuffie superior court. December 5, 1902. The petition alleged: (1) The defendant is, and at the tim& hereafter named was, a mining corporation under the laws of this State, with its principal office fixed by charter in Fulton county,, but having an office and agent in said county of McDuffie.

<p>The City of Augusta granted a building permit to a property-owner. In erecting a building in accordance with this permit the property-owner placed in the sidewalk a grating, and by reason of defects in the grating a pedestrian, fell through it and was injured. The pedestrian sued the city and obtained a judgment, the city having previously vouched the property-owner into the suit. On a suit by the city to recover from the property-owner the amount of the judgment paid by it on account of the suit by the pedestrian, held, that the city and the property-owner were not joint tort-feasors in the wrong which caused the injuries to the pedestrian, and the city was not prevented from claiming contribution from the property-owner.</p>

Action for breach of contract. Before Judge Brinson. Richmond superior court. December 15, 1902. Amanda. McDade, on January 3, 1893, conveyed 275 acres of land to M. F. McDade, as security for a debt. The deed was duly recorded.

<p>Action for damages. Before Judge Brinson. Richmond superior court. October 29, 1902.</p> <p>Cited, as to seizure by officer as excuse for non-delivery of goods by carrier: Hutch. Car. (2d ed.) §§170a, 390, 397-8; Hale on Bailments, 367-8; 5 Am. & Eng. Ene. L. (2d ed.) 237-8, 241-2; 4 Eli. R. § 1537, p. 2386 ; 48 Ga. 432; 60 Ga. 300, 313; 107 Ga. 512; 117 Ga. 63; 3 Am. & Eng. R. Cas. 492 (4 Cliff. 228); 4 Id. 210; 7 Id. 373, 381; 40 Id. 31; 55 Id. 671-2 (49 C. St. 489); 1 Black (U. S.), 101; 66 Mich. 143 (33 N. W. 298); 36 N. Y. 407; 25 Iowa, 60 (95 Am. Dec. 79); 44 Minn. 224 (20 Am. St. Rep. 566); 37 S. C. 1 (34 Am. St. Rep. 726, 735, and note); 8 S. C. 118; 6 Am. Rep. 213^15; Civil Code, § 2264.</p>

Action for damages. Before Judge Eve. City court of Richmond county. January 12, 1903.

<p>While a second application for an injunction may be made where an injunction was refused on the first application, such second application is addressed to the discretion of the judge, and should not, as a general rule, be granted unless based upon grounds which were finknown to the applicant at the time of the first application, and which could not, by the exercise of ordinary diligence, have been discovered by him.</p>

<p>Affidavit of illegality. Before Judge Griffin. City court of Valdosta. September 19, 1902.</p>

<p>1. An allegation that a husband and father failed to' supply his wife and daughter with necessaries, and that they were furnished by the plaintiff at the request of the wife and mother, set forth a cause of action under the Civil Code, §$ 2477, 2469.</p> <p>2. If the petition fails to show that the child was under twenty-one years of age, the defendant must take advantage thereof by plea, and not by special de-, murrer filed after the appearance term.</p> <p>3. The plaintiff is not required in his petition to negative facts which the defendant may set up by way of defense under the Civil Code, $ 2478.</p>

<p>Action for damages. Before Judge Evans. Bulloch superior court. November 1, 1902.</p> <p>The petition alleged, that the plaintiff, a boy sixteen years of age, was a passenger on a passenger-train of the defendant, having gone aboard it to go to Stilson, a regular station at which all such trains stop, and at which this train should stop, and that “ when the signal whistle for the station at Stilson blew, petitioner went to the door of the coach, and, as the train drew near the station, he went out on the platform to get off the train, but the train, through the fault and negligence of the defendant, did not stop as it should have done and was in duty bound to do, but ran past the station, petitioner standing on the platform, where he had gone without fault to get off the train at the station. When the train had run about one hundred and fifty yards past the station, the agents and employees of the defendant, without giving petitioner any warning, violently and suddenly applied the brakes to the train, causing an abrupt and instant break in the speed of the train, accompanied with a terrific shaking and jolting which threw petitioner from the platform to the ground,” where he received ■physical injuries described-; that he was injured by the negligence •of the defendant, without fault or negligence on his part; and that by reason of the injuries mentioned he was damaged in a sum stated. The defendant demurred on the grounds, that the petition showed that the plaintiff was not entitled to recover; that he was unnecessarily standing in a dangerous position, where under the rules of law and of all railroad companies, passengers are prohibited from riding, and that this showed a want of ordinary care on his part. The demurrer was sustained, and the plaintiff excepted.</p>

<p>Certiorari. Before Judge Brinson. McDuffie superior court. September 4, 1902.</p>

<p>1. Unless it affirmatively appears that an equitable petition was filed within three years from the date of the judgment sought to be reviewed thereby, a demurrer setting up the bar of the statute of limitations must be sustained.</p> <p>2. A motion to reinstate may be based on facts dehors the record; and a judgment denying the same is conclusive of all matters pleaded or which could have been pleaded, including any issue of fraud or mistake causing the judgment of dismissal.</p> <p>3. Where a case has been dismissed, and an order of reinstatement passed, but subsequently reversed by the Supreme Court, proceedings to renew must be brought within six months from the order of dismissal, and not within six months from the judgment reversing the order of reinstatement.</p> <p>4. Where an application for dower was dismissed, an order of reinstatement granted, and the latter judgment reversed by the Supreme Court, a bill in equity for the appointment of commissioners to assign dower, filed more than seven years after the death of the husband, is barred by the statute.</p>

<p>Where a garnishment was sued out, under the Civil Code, §4716, in one county, based upon a suit pending in another, it was erroneous to dismiss the.garnishment proceeding upon the ground that it did not affirmatively appear from the original affidavit and bond that the officer who took the same had made out a certified copy thereof, and that the officer who served the summons had transmitted such certified copy with his return thereon to the court where the main case was pending.</p>

<p>1. The alternative road law contained in the Political Code, when duly adopted for a county, only repeals therein so much of the old road law as is inconsistent with it. Section 520 of the Political Code is not inconsistent with such alternative road law, and must be complied with before a new public road can be lawfully established in a county wherein such alternative road law is operative.</p> <p>2. When a new public road has been lawfully established in a county in which such alternative road law has been adopted, only the road hands of the road district in which such road is located can be called out to open it up.</p>

<p>Certiorari. Before Judge Evans. Washington superior eourtAugust 10, 1902.</p>

<p>1. According to the express ruling in W. & A. R. Co. v. State, 69 Ga. 524, a judgment overruling a demurrer to an application for the writ of quo warranto is not a final disposition of the case, from which a bill of exceptions can •be taken to this court.</p> <p>2. In quo warranto proceedings a writ of error will not lie until there is a judgment of ouster or a final refusal to grant the writ.</p>

<p>Injunction. • Before Judge Bartlett. Polk superior court. April 24, 1903.</p>

<p>Motion to dismiss the writ of error.</p>

<p>Probate of will — appeal. Before Judge Barrow. Chatham superior court. August 30, 1902.</p>

<p>There was no error in the charge ; the evidence was conflicting, but fully warranted a verdict for the plaintiff; and' the judgment refusing a new trial is affirmed.</p>

<p>1. In a suit against the ‘‘ Plant System Relief and Hospital Department, ’ ’ which was averred to he a voluntary association composed of certain named railroad corporations, “and having an office, agent, and place of business” in the county in which suit was brought, this court can not, on a general demurrer filed by said Plant System Relief and Hospital Department, hold that beneficiaries of such association are necessary parties.</p> <p>2. The plaintiff below, the defendant in error, having sued for damages alleged to have resulted to him from the “ gross and inexcusable negligence and want of skill and care ” of the physicians and surgeons in charge of the hospitals of the plaintiff in error, in their attention to him, and not having averred that the plaintiff in error did not observe due care in the selection of said physicians and surgeons, the general demurrer should have been sustained.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. December 29, 1902.</p>

<p>1. In an action by a servant against a master the defendant can take advantage of the defense that the injury was the result of the negligence of a fellow-servant, without interposing a special plea to that effect.</p> <p>2. The evidence amply warranted the verdict. The charge, when considered as a whole, fairly submitted the different issues to the jury; and if any error was committed at all, it was not of such a character as to require a reversal of the judgment refusing a new trial.</p>

<p>Interpleader. Before Judge Barrow. Chatham superior court.. December term, 1902.</p>

<p>■Creditors holding two executions from justice courts, which had no return of “no property,” etc., and which might have been levied but were not, and other creditors holding claims for small sums in the form of open accounts •without liens, joining in a creditors’ bill, are not entitled to an injunction and the appointment of a receiver against a valuable cotton mill corporation, special circumstances taking the case out of the general rule not having been sufficiently shown.</p>

<p>Complaint. Before Judge Foster. Putnam superior court. September 19, 1902.</p>

<p>Equitable petition. Before Judge Barrow. Chatham superior court. September 24, 1902.</p> <p>After the decision in Neal-Millard Co. v. Owens, 115 Ga. 959, had been rendered, and before the remittitur had been made the judgment of the superior court, the Neal-Millard Company filed a petition to the superior court, setting forth the facts stated in the opinion of the Supreme Court, and alleging that since the filing of the original petition dealt with in that decision, by which the plaintiff sought to foreclose a materialman’s lien against real estate of Mary H. Owens, the time allowed in which to commence an action for that purpose had expired ; that the motion by the defendants to vacate the entry of service was made after the expiration of that time; and that the mistake of the clerk of the court in naming the defendants in the process was not and in the exercise of due care and diligence could not have been known to the plaintiff until that motion had been made; wherefore it was prayed that the court order the clerk to issue process directed to Hampton J. Herb and Mrs. Mary H. Owens, requiring them to appear at the next term of the court, and that the clerk be directed to attach a copy of said process to a copy of the original petition and to deliver the copies to the sheriff to be served on Mrs. Owens; and that the court grant such other equitable relief as the principles of justice and equity and the nature of the case might require. Mrs. Owens filed a demurrer. The court refused the petition, and the plaintiff excepted.</p>

<p>Affidavit of illegality. Before Judge Adams. City court of Dublin. October 16, 1902.</p>

<p>Complaint — attachment. Before Judge Norwood. City court of Savannah. November 7, 1902.</p>

<p>Action for damages. Before Judge Norwood. City court off Savannah. January 26, 1903.</p>

<p>Action on contract. Before Judge Norwood. City court of Savannah., January 21, 1903.</p>

<p>Action for damages. Before Judge Seabrook. Effingham superior court. November 11, 1902.</p>

<p>Attachment. Before Judge Seabrook. McIntosh superior court. December 2, 1902.</p>

<p>Petition for direction. Before Judge Felton. Bibb superior court. May 8, 1902.</p>

<p>1. Where one lays out a wagon-road, entirely on his own land, he has the same title to the road as to any other part of the land; and if a railroad company condemns a right of way through the land and across the wagon-road, it acquires the same title to the wagon-road as to the remainder of the tract condemned.</p> <p>2. One of several tenants in common can not, without the consent of his cotenants, convey an easement in the land which is the common property of all.</p> <p>3. To acquire a private way by prescription it is essential that the prescriber keep the way in repair for the period of prescription.</p> <p>4. A private way of necessity will not be granted unless it is indispensable to the enjoyment of his property by the party claiming it.</p>

<p>Indictment for subornation of perjury. Before Judge Lewis. Greene superior court. June 1,1903.</p> <p>Stone was indicted for suborning Linda Green to commit perjury on the trial of Newsome, charged with the murder of Lula James. The fact of such subornation was proved by the positive and direct testimony of Linda Green herself, and also by her two-daughters, Who, according to the theory of the State, were likewise independently suborned to testify to distinct facts in the trial for murder; and there was evidence that the defendant at night made many visits to the house of the Greens for the purpose of coaching them'as to the testimony to be given by them on the trial of Newsome. In his statement the defendant admitted having gone to Linda Green’s house at night, and that on the first occasion he talked with her for some time in reference to her testimony before the coroner’s jury, and her explanation thereof; though he insisted he had done nothing improper, and had gone only as a friend of Johnson, the half-brother of Newsome. He claimed that on the second occasion he acted solely as an officer to witness affidavits ■ containing the statements of Linda Green and her two daughters. The testimony of a witness, Campbell, in part tended to establish that the testimony of Linda and her two daughters on the trial for murder was false. The jury found the defendant guilty. The exceptions mainly argued here involve the question as to whether Stone was an accessory, and could be tried before the conviction •of Linda Green of perjury; whether Linda and her two daughters were accomplices of Stone; and whether he could be convicted on itheir uncorroborated testimony, especially as they confessed that they had been guilty of perjury in reference to the same facts on the trial for murder. These are the controlling points in the case.</p>

<p>1. The motion to dismiss the writ of error is without merit.</p> <p>2. The rule that an undisclosed principal shall stand liable for the contract of his agent does not apply when the contract is under seal. Accordingly, a lease under seal, executed by an agent as lessee in his individual name, and which does not purport to be executed on behalf of the principal, is not binding upon the latter, although it appears from extrinsic evidence that the lessee was the general agent to conduct a business for his principal, and that the premises were leased to be used in such business.</p> <p>8. Where, during the continuance of the term under such a lease, the premises were used by the principal, or by his agent as manager in operating the business, an action for use and occupation could not be maintained against the principal.</p>

<p>Trespass. Before Judge Briuson. Richmond superior court. December 16, 1902.</p>

<p>Injunction. Before Judge Gary. . Richmond superior court. March 16, 1903.</p> <p>The petition of Floyd W. Thomas, trustee in bankruptcy of George B. Parker, against George B. Parker, John H. McKenzie, and Charles F. McKenzie, individually and as partners, as J. H. McKenzie & Son, Hollis C. Boardman, Margaret T. Gray, the Commerical Bank of Augusta, and the McKenzie Brick Company, alleged: On May 31, 1900, said Parker conveyed to Margaret T. Gray 161 acres of land (described) to secure a loan of $3,000, and on November 5, 1900, he conveyed the same land (subject to the former conveyance) to the Commercial Bank to secure a debt of $5,775. On January 4, 1901, said Parker, John H. McKenzie, Charles F. McKenzie, and Hollis C. Boardman entered into an ■agreement (a copy of which was set out), to the effect that they would, as promptly as practicable, become incorporated under the name of the McKenzie Brick Company, with capital stock to the amount of $25,000, of which the two McKenzies were to subscribe at the outset $2,000, Boardman $2,000, and Parker $2,000 ; and $200 was to be put immediately into a common fund, to be held for the use of the corporation as soon as it should be incorporated, and the remainder to be paid in cash on or before March 1, 1901; ■that if any of the parties should fail to comply with the agreement, the cash so paid should be forfeited to the other party or parties in compensation for the trouble undergone; that Parker was to sell the land before referred to, together with the horses, mules, farming utensils, and personal property thereon, to the said Brick Company for $5,500, payment for the land to be made by Brick Company by paying Parker’s debt of $5,500 to the Commercial Bank, Parker agreeing to appropriate his entire profit's, exclusive of his salary from the Brick Company, to the payment of his debt to Mrs. Gray, and agreeing that in any event he would pay that debt in five years from date; that Parker was to be employed as manager ■of the company at a salary of $80 per month, “ so long as [he] •complies with the terms of this agreement, and so long as the plant is actively at work and profitable; ” that to secure his obligation to pay Mrs. Gray, he was to transfer to the company the $2,000 of stock he was to purchase therein; that Charles F. McKenzie was to be secretary and treasurer; and that “All rights and obligations herein created and entered into are for the benefit of said brick ■company, though they may be all enforced in the names of the parties hereto, should said company not be incorporated.” Parker was insolvent at the time of this agreement, and was indebled to the parties mentioned in the bankruptcy proceedings, and continued insolvent down to the adjudication in bankruptcy. In pursuance of the agreement the parties thereto applied to the court for incorporation, and the charter applied for was granted on February 5, 1901; but the incorporators never legally organized under the charter, and never became a corporation de jure. The petition for incorporation stated that the capital stock was $25,000, actually paid in; but this amount was never paid in, nor in good faith subscribed for; the only part subscribed for, prior to February 8,1901, was $6,000, of which the McKenzies paid $2,000, Boardman $2,-000, and Parker $75; ten per cent, of the capital was not paid in on February 8, 1901, on which date Parker, in pursuance of said agreement, transferred said property and his bond for title from Mrs. Gray (all his visible assets) to said company for the consideration, as expressed in the deed, of $5,500; but this was not the real consideration, and no part of this sum was paid to Parker. The real consideration, if there was any, was the carrying out of' said agreement, whereby the company should pay the debt of Parker to the Commercial Bank of $5,500, and Parker was to manufacture the land into brick, as general manager, at a salary of $80 a mouth, and retained an undivided third interest in the property, and was to receive a third of the profits of the business. If this was not the consideration, the deed was voluntary. On the day on which this conveyance to the company was made, the said parties, acting in the name of the company, made a note to the Commercial Bank for $5,500, in lieu of that of Parker held by the bank, and then undertook .to convey the land to the bank as security for the new note. The note and deed, as the act of a corporate entity, were void. By said action Parker attempted to convey his property beyond the reach of his other creditors, to hinder and delay them in the collection of their debts, which intent’was known to his grantee, if any he legally had; and said bank, a creditor of said Parker, was thus attempted to be preferred; all being done while he was insolvent, and in contravention of the bankrupt law, and within four months before the filing of the petition in bankruptcy against him (May 23, 1901). The brick company has never paid the debt to the bank, but is renewing it from time to time, and said promoters or corporators are severally liable for its payment. Said company never acquired any title, legal or equitable, by virtue of said deed to it, and was in law incapable of acquiring the same, nor did it convey any rights to the bank, under said conveyance of February 8, 1901. After the making of the contract for incorporation, and the deed to the company, Parker continued in possession of the property. Under that contract and the transfer of February 8, 1901, a trust or benefit was reserved in said property for the use of Parker, to wit: a benefit or interest as a subscriber to the stock of the contemplated company; a benefit or. interest to the extent that he paid for said stock; a benefit of indefinite employment as its general manager at a salary of eighty dollars a month ; and a benefit in an undivided third of the profits of the corporation, out of which it -was agreed Mrs. Gray was to be paid. The consideration of $5,500 named in said transfer was much less than the value of the property, and said agreement for incorporation represented a part of the consideration to be received by Parker. Said promoters and the so-called corporation knew of said trust and benefit reserved by Parker. - The title of said company is void as against the creditors of Parker, and as against plaintiff, their representative, the same being founded on a transfer by Parker, au insolvent debtor, to a contemplated corporation to be formed by himself and' others, to be operated preferentially and beneficially, for the use of himself and a favored creditor, whom he desired paid, Parker at the same time, under said agreement, with the consent of said McKenzie and Boardman, reserving an interest and benefit for himself. Said company, whether a corporate embryo or voluntary association, is charged with the knowledge of its members as aforesaid, under said contract. The conveyances of Parker to Mrs. Gray and the bank, of May and November, 1900, carried, so far as plaintiff is informed, the title to said property to secure the sums loaned, leaving in Parker an equitable interest — the right to redeem on payment of the indebtedness, which right passed to plaintiff, by operation of law, for administration in bankruptcy; but plaintiff does not know whether these conveyances are still valid, and he reserves the right to contend that they are no longer prior to his claim, when he is fully apprised of the facts. Said company is not; as against plaintiff, a legal corporation, but is simply the name under which its promoters are doing business; but whether a corporation or not, they have no legal or equitable right to have, control, or use said property, and are in equity and good conscience bound to account to plaintiff therefor and for the profits made therefrom. Said company and its agents, including Parker, are engaged in the business of making brick, and in so doing are using up and removing a part of the freehold and selling it and converting the proceeds to their own use. By said arrangement Parker contracted for indefinite employment, and has by said transfers placed the property beyond the reach of the ordinary process of law. Said property, both real and personal, is the property of Parker, and is now the right and property of plaintiff as his trustee in bankruptcy, subject only, in equity, to the prior claims of Mrs. Gray and the Commercial Bank, if any. The conveyance by Parker to said company and its claim to be the owner of said property, under the contract, conveyance, and organization aforesaid, are clouds on the title of plaintiff, and must be removed before plaintiff can fully realize on Parker’s interest therein. Said promoters, claiming to be a corporation, are holding themselves out as the owners of said property, doing business thereon, and that without any legal right or title thereto. Whether said so-called corporation or association of promoters is able to pay its debts is unknown to plaintiff; but plaintiff, upon information and belief, charges that on an investigation of its affairs it will be found to be insolvent. Said parties have permitted said land (which in their statement of the affairs of said company to the commercial agencies they value at $16,000) to be returned for taxation for 1901 at $1,500. The brick made therefrom and the profits realized from those sold are in equity the property of plaintiff as trustee in bankruptcy of said Parker. Said brick and sales aggregate the value of $20,000, or other large sum, and said sum went into the hands of said McKenzies, Boardman, and Parker. The action of said McKenzies, Boardman, and Parker,in attempting to exercise corporate powers under said charter before said $25,000 was bona fide subscribed in writing, has rendered them liable to the creditors of the so-called corporation, to the extent at least of $25,000. • Plaintiff has in equity the rights of a creditor, so far as to require said parties to account for all of said property conveyed, the property taken from the freehold, the brick and the sales made thereof. This right is superior to any debt of said corporation in embryo or association of promoters. Their continuance in business complicates the situation surrounding the property. Plaintiff and the estate he represents are financially unable to tender to Mrs. Gray and the bank the amount of their claims, even if it were necessary. Mrs. Gray and the bank have not proved their claims in the bankrupt court, and have not sought to have their security valued. Said McKenzies and Boardman claim that Parker has no rights in said property, and that none passed to plaintiff as his trustee in bankruptcy. In view of these adverse claims, plaintiff’s right to redeem, or in equity cause a sale of said property free from the claims of Mrs. Gray — such claims, if any, to attach to the proceeds of the sale, — is valueless, and can not be sold or administered on at its true value, until the conveyances of February 8,1901, made by Parker and his associates, are canceled, and the debts, if any, to Mrs. Gray and the bank are fixed and defined. Plaintiff prays, that a receiver for the property be appointed; that the defendants be enjoined from using it or claiming title to it; that the conveyances of Parker to said company and from the company to the bank be canceled; that the defendants be required to interplead; that the court decree a sale - of the property, free from the claims of all parties, and distribute the proceeds and pay over to plaintiff, for administration in the bankrupt court, that part of the proceeds to which he is entitled as trustee; for an accounting as to the profits made from the property; and for general relief.</p> <p>The defendants, except Parker, Margaret T. Gray and the Commercial Bank, filed a demurrer, and answered denying the allegations as to insolvency, and other material allegations. The demurrer was on the following grounds: No cause of action is set out. There is no right to the equitable remedy asked for. The petition fails to allege that Parker complied with the terms of the contract therein referred to. The petitioner does not show wherein he has a right to attack collaterally the existence of the corporav tion. He is privy with Parker, and as such is estopped, under the allegations of the petition, from denying the corporate existence of said company. The petitioner does not offer to carry out the contract and perform the duties assumed by Parker. There is no allegation that Parker paid for stock in the corporation, and therefore such stock is not assets of which the trustee in bankruptcy can take charge. There is no allegation that the defendants are insolvent. There is no allegation that the defendants, or any of them, knew of the alleged insolvency of Parker when the contract referred to in the petition was entered into between them and Parker. There is no allegation to show why any payment made by Parker has not been forfeited by reason of his non-compliance with his obligations under the contract. There is nothing to show that the petitioner is entitled to any profits from the company, as it is not shown that the stock subscribed for by Parker was paid for. There is nothing in the petition to show that Parker did not lose his employment under the terms of the contract. The petitioner does not show that he represents any of the creditors of the so-called corporation, and therefore he has no rights by reason of the alleged liability of the defendants to. its creditors. The petition fails to show that the alleged equity of redemption of Parker is of any value. It fails to show that the defendants had notice or knowledge that in any way made them parties to the alleged effort on the part of Parker to give a preference to one or more of his creditors. The petition is multifarious.- There is a misjoinder of parties.</p> <p>The court overruled the demurrer and granted an injunction restraining the defendants from disposing of or encumbering the property in question.</p>

<p>Certiorari. Before Judge Seabrook. Liberty superior court. November 18, 1902.</p>

<p>Indictment for robbery. Before Judge Littlejohn. Sumter superior court. June 23, 1903.</p>

<p>Indictment for simple larceny. Before Judge Littlejohn. Sumter superior court. June 23, 1903.</p>

<p>Couvictiou of assault. Before Judge Russell. Gwinnett superior court. June 25, 1903.</p>

<p>Conviction of manslaughter. Before Judge Parker. Coffee superior court. June 18, 1903.</p>

<p>There was no error of law complained of. The evidence was of such a character as to authorize a finding against the accused on all of the issues raised in the case ; and the discretion of the trial judge, exercised in overruling the motion for anew trial, will not he interfered with.</p>

<p>-Indictment for murder. Before Judge Littlejohn. Stewart superior court. July 1, 1903.</p>

<p>Indictment for burglary. Before Judge Littlejohn. Sumter superior court. June 22, 1903.</p>

<p>Indictment for assault with intent to murder. Before Judge Barrow. Chatham superior court. July 7, 1903.</p>

<p>Indictment for larceny from house. Before Judge Felton. Bibb superior court, August 10, 1903.</p>

<p>Indictment for murder. Before Judge Felton. Bibb superior court. August 10, 1903.</p>

<p>Certiorari. Before Judge Evans. Putnam superior court. July 13, 1903.</p>

<p>Indictment for murder. Before Judge Lewis. Jefferson superior court July 28, 1903.</p>

<p>Accusation of selling liquor. Before Judge Hollingsworth. City court of Fayetteville. July 31, 1903.</p>

<p>Indictment for assault with intent to murder. Before Judge Holden. ‘ Washington superior court. May 23, 1903.</p>

<p>Accusation of vagrancy. Before Judge Hodges. City court of Macon. September 5, 1903.</p>

<p>Indictment for assault and battery. Before Judge Eeeee. City nourt of Floyd county. September 16, 1903.</p>

<p>Indictment for assault with intent to murder. Before Judge •Mitchell. Thomas superior court. June 12, 1903.</p>

Indictment for selling liquor. Before Judge Evans. Hart su-* perior court. June 23, 1903. The accused made a motion for a continuance because of the absence of three witnesses by whom he expected to prove that the general character of the State’s witness, Roland, was bad, and that they would not believe Roland on oath.

<p>Inquisition as to insanity. Before Judge Roan. Fulton superior court. June 15,1903.</p>

<p>Indictment for perjury. Before Judge Butt. Muscogee superior court. July 10, 1903. The indictment charged H. P. Goodwin with the offense of perjury, “ for that the said H. P. Goodwin, on the 12th day of February, in the year 1903, in the county aforesaid, did then and there, unlawfully, willfully, knowingly, absolutely, and falsely swear in a matter material to the issue" and point in question, on the trial of one Arthur Jeffrey in the superior court of said county, on a bill of indictment charging said Jeffrey with the offense of bastardy, the same being a judicial proceeding, and a lawful oath having been administered to said H. P. Goodwin, the said false testimony being as follows, to wit: Question propounded to said Goodwin,— ‘Do you know whether or not she [the indictment here gave, as a part of the question, the name of the person referred to] had sexual intercourse with a man on that occasion V to which the witness replied, ‘ Yes, sir, I do.’ And also, when questioned as to what man had sexual intercourse with said [person named], the witness Goodwin replied, ‘Well, I guess I count myself a man.’ Which testimony of the witness was willfully, knowingly, absolutely, and false"^ swearing that which was untrue; the said superior court of Muscogee county having then and there competent jurisdiction to try said case of the State vs. Arthur Jeffrey, and power and authority to administer said oath in said case to the said H. P. Goodwin; contrary to the laws of said State,” etc. The demurrer contained the following grounds: The facts alleged in the indictment are not sufficient, under the law, to constitute the offense charged. The indictment does not state what was the material issue and point involved in the trial of the judicial proceedings referred to therein. It does not appear that the alleged false swearing was on a material issue or point involved in said judicial proceedings. The indictment does not show what connection the sexual intercourse. of the woman named had with the offense of bastardy, the foundation of the judicial proceedings referred to. It is not alleged that the defendant was a witness in the trial of the bastardy case and was sworn as such in said judicial proceeding. The defendant, in the use of the language alleged to have been used by him, could not have committed the offense charged in the indictment. The indictment fails to specify any certain or definite occasion and time that the words alleged to have been used by him refer to. The material point or question at issue was the committing of the offense of bastardy, and not whether the woman referred to by the witness had had sexual intercourse with a man at some indefinite time.</p>

<p>The alleged errors which were properly assigned furnish no reason for'granting a new trial. The evidence authorized the verdict, and the discretion of the trial judge, exercised in overruling the motion for a new trial, will not be interfered with.</p>

<p>Iudictméut for vagrancy. Before Judge Crisp. City court of Americus. July 29, 1903.</p>

<p>1. Where the indictment charges the defendant with keeping, maintaining, and operating a lottery scheme, proof that he kept or maintained the same is sufficient to warrant a conviction, without showing a drawing.</p> <p>2. Not only the proprietor, but all agents assisting in keeping, maintaining, or operating a lottery are liable as principals.</p> <p>3. Where it appeared that the defendant was found in control of what he admitted was a “policy shop,” with the paraphernalia used in drawings exposed to view therein, and when arrested stated that he ‘ ‘ did not run the place, hut was waiting in the place of another” person, there was evidence sufficient to support a conviction.</p>

<p>Indictment for keeping policy lottery. Before Judge Seabrook. Chatham superior court. August 1, 1903.</p>

<p>Indictment for larceny after trust. Before Judge Barrow. Chatham superior court. July 28, 1903.</p>

<p>No error of law was committed, and there was sufficient evidence to authorize the verdict.</p>

<p>Indictment for wrecking train. Before Judge Holden. Washington superior court. June 5/ 1903.</p>

<p>Accusation of selling liquor. Before Judge Quincey. City court of Douglas.' August 31, 1903.</p>

<p>Indictment for murder. Before Judge Harris. Meriwether superior court. August 25, 1903.</p>

<p>1. Where an offense may he committed in one of several ways not repugnant to each other, a count is not double because it charges that the act was done in several of the ways prohibited by the statute.</p> <p>2. Under such an indictment the State can not be required to elect for which particular act it will ask a conviction.</p> <p>8. Proof of the commission of any one of the prohibited acts will support a conviction.</p> <p>4. The evidence established that the defendant had no visible means of support, was able to work, and lived an idle, immoral, and profligate life.</p> <p>5. The fact that she occasionally did a little work and earned small sums of money insufficient to support her was no answer to the general state of idleness in which she was shown to live.</p>

<p>Indictment for murder. Before Judge Evans. Emanuel superior court. August 22, 1903.</p>

<p>Petition for habeas corpus. Before Judge Reid. City court of Atlanta. September 19, 1903.</p>

<p>Indictment for assault with intent to murder. Before Judge Kimsey. Hall superior court. September 7, 1903.</p>

<p>1. Although the parties had engaged in a struggle, and there was evidence from which it might have been inferred that the deceased, who was unarmed, was the assailant, yet where it appeared that he retired, declining further contest, and that the defendant, with an open knife in his hand, pursued the deceased, and inflicted five wounds, one of which proved fatal, the evidence was sufficient to warrant a verdict of guilty of murder.</p> <p>2. It was for the jury to determine whether the interval between the assault and the homicide was sufficient for the voice of reason and humanity to be heard.</p>

<p>Indictment for vagrancy. Before Judge Evans. Taliaferro superior court. August term, 1903.</p>

<p>Indictment for obstructing railroad. Before Judge Henry. Floyd superior court. September 17, 1903.</p> <p>The indictment charged Andy Sanders “ with the offense of obstructing, for that the said Andy Sanders . . did wilfully and maliciously obstruct the railroad of the Central of Georgia Railway Company by placing upon the track of said railroad an iron bolt; for the said Andy Sanders did then and there place upon the rail of said railroad track a certain bolt being an obstruction upon said track; contrary to the laws of said State)” etc. There was a verdict of guilty, and the accused was sentenced to the penitentiary for four years. He made a motion in arrest of judgment, on the grounds, that no crime was charged in the indictment; that the indictment was under section 519 and the punishment under section 520 of the Penal Code; and that there was no allegation in the indictment that the railroad was the road of a chartered company. To the overruling of this motion he excepted.</p>

<p>Certiorari. Before Judge Seabrook. Effingham superior court. January 13, 1903.</p>

<p>Garnishment. Before Judge Felton. Bibb superior court. February 10, 1903.</p>

<p>Action for damages. Before Judge Felton. Bibb superior court. March 3, 1903.</p>

<p>Petition for alimony. Before Judge Felton. Bibb superior court. August 11, 1903.</p>

<p>Petition for mandamus. Before Judge Lumpkin. Fulton superior court. August 5, 1903.</p>

<p>Indictment for burglary. Before Judge Roberts. Montgomery superior court. June 19, 1903.</p>

Indictment for embezzlement. Before Judge Roan. Eulton superior court. June 23, 1903.

<p>Where jurors are challenged on the ground that they do not stand indifferent between the State and the accused, because they have already served in a trial against others involved in the same transaction as that for which the accused is to be tried, the Penal Code, § 757, makes it the duty of the county-court judge to. test their impartiality. This should be done by putting the jurors on their voir dire, and hearing'evidence as to whether the case to be tried involves the same transaction as to which they have already rendered a verdict.</p>

<p>Indictment for murder. Before Judge Spence. Decatur superior court. July 22, 1903.</p>

<p>Accusation of vagrancy. Before Judge Hodges. City court of Macon. September 5, 1903.</p>

<p>1. “The law does not favor convictions based upon confessions, and, least of all, upon implied confessions.”</p> <p>2. It is only when the circumstances require an answer or denial that silence may amount to an admission.</p> <p>3. Where the defendant was under arrest, and no statement was made in his presence requiring a denial, the fact of his silence should not be admitted as evidence tending to show guilt; and it was error, over defendant’s objection, to admit such evidence, or to permit an argument to be based thereon.</p>

<p>1. Updh the trial of a murder case evidence that upon an application for bail the judge had released the accused upon a bond of a small amount was not relevant to the issue.</p> <p>2. The evidence was of such a character as to authorize an instruction upon the law of mutual combat.</p> <p>3. The evidence authorized the verdict.</p>

Certiorari. Before Judge Seabrook. Liberty superior court. January 14, 1903.

<p>Affidavit of illegality. Before Judge Seabrook. Liberty superior court. June 27, 1903.</p> <p>The execution .was for $290 principal, besides interest and costs. According to the affiant’s evidence, $200 was the value of the property levied on and released; the plaintiff testified that $90 was a fair pride for it. The jury, by direction of the court, rendered a verdict “in favor of the illegality.” The plaintiff made a motion for a new trial, on the grounds that the verdict was contrary to law and the evidence, and that the court erred in directing the verdict. The motion was overruled, and he excepted.</p>

<p>Complaint. Before Judge Hodges. City court of Macon. January 26, 1903.</p>

<p>1. In a petition for a divorce, brought by a wife, she alleged that in consequence of her refusal of the repeated demands of her husband that she should permit him to manage and control certain realty and personalty which she owned at the time of the marriage, he committed the acts of cruelty set up as the ground for a divorce, and prayed that he be enjoined ‘ ‘ from interfering in any manner whatsoever with [her] or her property.” A temporary restraining order was granted in accordance with the prayer. An amendment was allowed, which set forth that since the granting of such order the husband had interfered with the wife’s property, by notifying her tenants not pay rent to her but to him. basing his right to the rents upon a deed purporting to have been made by her to him during coverture, which deed was alleged to be forged. The prayers of the amendment were, that the husband be dealt with for violating the restraining order, that he be enjoined from interfering with the wife’s tenants, and that such deed be cancelled. Seld, that the amendment was not demurrable upon the ground that it sought to unite in one case different and distinct causes of action.</p> <p>2. An amendment to a petition, when allowed, relates back to the beginning of the original suit and does not change the trial term thereof. That a party is surprised, or less ready for trial, by reason of an amendment is not cause for demurrer thereto.</p>

<p>Motion to set aside judgment. Before Judge Hodges. City court of Macon. April 4, 1903.</p> <p>Suit on a joint and several promissory note was brought against Lucas, Westcott, and Ayres, returnable to the June term of the city court of Macon. Westcott was sheriff of the county and of the court. The clerk of the court attached a process to the petition, directed to the sheriff of the county and his deputies. This petition and process was served upon Ayres by one of the sheriff’s deputies. Ayres did not appear or plead. He died in July of the same year. Westcott acknowledged service of the petition. On September 9, 1897, the death of Ayres was suggested, and judgment was entered against Lucas and Westcott, they having filed no defense. Mrs. Ayres (now Mrs. Pearson) was appointed administratrix on the estate of her deceased husband. On September 10, 1898, after the expiration of the twelve months in which the administratrix was exempt from suit, what was called a scire facias was issued against her, making her a party to the suit and requiring her “ to appear and answer instanter to said suit.” This order was served upon her by a deputy of the sheriff. She failed to appear or plead, and on September 24, 1898, judgment was rendered against her. On January 19, 1899, she filed a motion to set aside the judgment, the grounds of her motion being, in substance, that the process was void, because directed to the sheriff and his deputies when the sheriff was himself a party 'defendant ; that the service was also void, because, the sheriff being disqualified on account of being a party, his deputy had no right or authority to make the service; that the order issued by the judge making the administratrix a party and calling upon her to appear instanter and defend was void, because the judge had no authority to make her a party without issuing a regular scire'facias calling upon her to show cause why she should not be made a party; and that the service of the judge’s order was void for the same reasons that the service of the original petition was void.Upon hearing this motion, the court passed an order vacating and setting aside the judgment against the administratrix. The plaintiff excepted.</p>

<p>Action for libel. Before Judge Hodges. City court of Macon. April 6, 1903.</p>

<p>Action for damages. Before Judge Hodges. City court of Macon. April 20, 1903.</p>

<p>Levy and claim. Before Judge Felton. Bibb superior court. April 20, 1903.</p>

<p>Equitable petition. Before Judge Felton.' Bibb superior court, March 31, 1903.</p>

<p>1. When no defense to a suit brought in the city court of Macon is filed by the second Saturday of the first term, and an entry of default is made on that or any subsequent day, the case is ripe for trial and final judgment at any time after the making of the entry ; and after the rendition of final judgment all right to open the default is gone.</p> <p>2. Even if the law contained in the Civil Code, § 5070, relating to the opening of defaults, is applicable to any suit brought in the city court of Macon, it has no application to a case in which final judgment has been entered.</p> <p>3. There is no error in striking a traverse of an officer’s return of service, when the officer is neither made a party nor given any notice of the filing of the traverse.</p>

<p>1. The plaintiff, an engineer, was injured in a collision while driving an engine of the defendant company through its yards at night. One of the disputed points was whether or not the plaintiff, at the time of the collision, was displaying the proper signals. Rules of the company relating to “ yard ” engines were in evidence, but, under the definition of a yard engine therein given, the engine which the plaintiff was operating was not a yard, but a road engine. There was no evidence of any printed rule of the company, of which the plaintiff had notice, prescribing the signals to be displayed by road engines while running through the yards. Held, that it was not error for the court to admit evidence of the custom of engineers of the defendant as to signals displayed by such engines under similar circumstances, or to instruct them with reference to such evidence in the charge.</p> <p>2. Grounds of a motion for a new trial which complain of extracts from the charge, of the court, but do not point out the alleged error therein, call in question only the abstract correctness of the charges complained of.</p> <p>S. The charge of the court relating to the elements of damage entering into the plaintiff’s case, and to the use of the mortality and annuity tables, was, in the light of the entire charge, without error.</p> <p>4. The evidence fully warranted the verdict, and the amount found for the plaintiff was not excessive.</p>

<p>1. Where the plaintiff states a good case in his declaration arid sustains it by his evidence, a nonsuit should not be ordered.</p> <p>2. To make a plea of rescission effectual, it should aver all the facts necessary to constitute a good rescission in law.</p> <p>3. In claiming damages by way of recoupment or set-off, the defendant should sufficiently aver the items of such damages.</p>

<p>Action for damages. Before Judge Felton. City court of Macon. June 8, 1903.</p>

Certiorari. Before Judge Felton. Bibb superior court. . June 8, 1903. Essie B. Widgeon sued the express company in a justice’s court for $38, alleging that it received from her, for shipment, a trunk, with direction to collect a bill for that amount on the delivery of the trunk, and that it delivered the trunk but failed to collect the money.

Certiorari. Before Judge Felton. Bibb superior court. April term, 1903. To the facts stated in the decision it is sufficient to add the following. The plaintiff testified: Will Hudgins owes me the amount claimed. He is in Bessemer, Alabama, and was there when the attachment was sworn out, and had been for several months. I took out the attachment because I heard that Mrs. Hudgins had packed the household goods and was going to move to him. I found the goods were packed.

<p>Civil Code, § 2334, fixing the venue of suits against railroad companies, applies to foreign as well as domestic corporations.</p>

<p>Where to an action against two defendants on an unconditional contract in writing a plea is filed in the name of both defendants, but is sworn to by only one, and no effort is made by the other defendant to amend the plea by adding thereto his verification, the trial court is bound to render judgment against such defendant; and this is so although no objection to the plea was made by the plaintiff at the return term. Ward v. Frick, 95 Ga. 804, distinguished.</p>

<p>Complaint. Before Judge Eelton. Bibb superior court. August 4, 1903.</p>

Affidavit of illegality. Before Judge Felton. Crawford superior court. March 30, 1903. S. W. Dent sued Colbert in Crawford superior court. A summons of garnishment directed to W. J. Dent was issued on an affidavit and bond based on this suit, dated September 7, 1897, and was served on that day. On March 20, 1899, a verdict was rendered in favor of the plaintiff, and the following judgment entered thereon: “ S. W. Dent vs. Arch Colbert, deft., W. J. Dent, garnishee.

Petition for injunction. Before Judge Henry. Floyd superior court. July 14, 1903.

<p>Where one person is seeking to have a dollar coin changed, and another takes it saying he will go and get it changed, and the former demands the money hack and holds the person taking it, and the latter breaks away and runs, with intent to steal the same, these facts make a case of simple larceny.</p>

<p>Attachment. Before Judge Eelton. City court of Macon. March 9, 1903.</p>

<p>1. Where in an action for false imprisonment the plaintiff makes out a prima facie case of unlawful arrest and detention, and the defendant defends upon the ground that he was an officer authorized to make arrests, and arrested the plaintiff, for an alleged misdemeanor, without a warrant, because there was likely to be a failure of justice for want of an officer to issue a warrant, the burden is on the defendant to establish that the circumstances were such as to authorize him to arrest the plaintiff without a warrant. The facts of the present case rendering the above rule applicable therein, and the defendant having wholly failed to show that there was likely to he a failure of justice for want of an officer to issue a warrant, the verdict in his favor was contrary to evidence and to law.</p> <p>2. When an officer, without a warrant, attempts to make an arrest for an alleged misdemeanor, and the person sought to be arrested has no notice that the attempt to arrest is being made by lawful authority, such person has the right to resist the attempt to take him into custody,' and the arrest, if made, is illegal.</p> <p>3. While the Civil ¿¡ode, §3844, applies to actions for malicious prosecution, and has no application in a suit against an officer merely for unlawful arrest and imprisonment and acts of violence accompanying the arrest, yet where, in a suit of the latter character, the plaintiff alleges that the acts complained of were done “without probable cause and maliciously,” it is not erroneous to give this section in chai’ge to the jury.</p> <p>4. Civil Code, § 3852, applies only to a case where the imprisonment complained of was under a warrant defective in form, or void for want of jurisdiction, and does not apply in a case where the imprisonment was not by virtue of any warrant whatever.</p>

<p>Action for libel. Before Judge Hodges. City court of Macon. June 18, 1903.</p> <p>. The petition alleged, in substance, that on November 9, 1902, the plaintiff was discharged from the service of the defendant as a conductor, because of a mistake as to an order; that his application for reinstatement was pending until January 3, 1903, when it was finally refused; that when discharged he bad in bis possession certain mileage exchange tickets and sleeping-car and parlor-car tickets, which were unused and were good for use over the defendant’s line, and which it had given to him as part of a conductor’s equipment; that he was ready to turn them over to it, and the defendant knew this, yet failed to call on him for them, and led him to believe that he would be reinstated; and that, maliciously intending to injure him, the defendant, through its duly authorized high officials, published of and concerning him the following circular:</p> <p>“ Central of Georgia Railway Company.</p> <p>Passenger Department. -</p> <p>Circular No. — &—& Savannah, December 3ist, 1902.</p> <p>File No.-X. 6111.</p> <p>All Passenger Conductors:—</p> <p>— BULLETIN —</p> <p>TICKETS LOST AND SCALPED ¡ — Mileage Exchange Tickets Form M. E. T. Nos. A-4630 to A-4649, inclusive, also Parlor and Sleeping-Car Tickets, Form S. C. Nos. T — 6110 to 6199 inclusive.</p> <p>Mr. W. C. Sheftall, formerly employed by this company as conductor on the Second Division, upon leaving the service of the company fails to surrender:</p> <p>Mileage Exchange Tickets, Form M. E. T. Nos. A — 4630 to A— 4649, inclusive, total 20 tickets:</p> <p>Parlor aud Sleeping-Car Tickets, Form S. C. E. Nos. T — 6110 to 6199, inclusive, total 90 tickets.</p> <p>If any of the tickets described above are presented for transportation, .you must decline to honor them; if possible, lift tickets and send them to General Passenger Agent with full particulars.</p> <p>Conductors of trains upon which sleeping cars are operated will please instruct porters fully in regard to the outstanding sleeping-car tickets.</p> <p>[Signed] W. A. Winburn, J. C. Haile, F. J. Robinson, Y. P. & T. M. G. P. A. A. G. P. A.”</p> <p>The petition alleged that this circular was, by the defendant’s authority, placed in the hands of and published to one of its division superintendents and to five or more of its conductors, in the county of Bibb, and was read by them and by divers others of its conductors aud officials in that county, and was sent out by it to many of its conductors and to other division superintendents; that the defendant intended by this publication, and it was construed and understood by the conductors and superintendents who received or read it, to charge the plaintiff with having feloniously disposed of these tickets, and with “ scalping ” them; and that he was thereby injured in his good name, etc. The defendant demurred on the grouuds, that no cause of action was set forth ; that the allegations as to publication of the alleged libel showed no publication as contemplated by law; and that the words were not libelous, and not capable of the construction placed on them by the innuendo. . It also answered and set up that the circular was privileged. By amendment the plaintiff alleged that the circular was posted in the defendant’s offices at Macon, on a bulletin board which all its employees were required to examine, and at other places; that these offices were open to and frequented by the general public, and that the matter contained in the circular was in this manner published to the world. The defendant objected to the amendment as setting out a new cause of action. Error is assigned on the overruling of the demurrer and the allowance of the amendment.</p>

<p>Complaint — appeal. Before Judge Felton. Bibb superior court. August 6, 1903.</p> <p>Cited by counsel: 20 Am. & Eng. Ene. L; (2d ed.) 29, 32, 47; 1 Id. 1071-2-3.</p>

<p>Certiorari. Before Judge Felton. Bibb superior court. June 9,1903.</p>

<p>Petition for mandamus.</p>

<p>Complaint— appeal. Before Judge Felton. Bibb superior court. August 10, 1903.</p> <p>■ The action was for $98.43 alleged, to be due on account of loss of weight in cotton bought by the plaintiffs from the defendants. The verdict was: “ We, the jury, find for the plaintiff for $98.43 with interest from demand.” One of the grounds of the defendants’ motion for a new trial was that the verdict was indefinite and uncertain, and that no valid judgment could be based on it, because it did not show the amount of principal and interest found by the jury. A note by the court states that “ plaintiff wrote off the judgment for an amount that- reduces verdict and judgment to the sum of $95.45.” According to the plaintiffs’ evidence, this was the amount due by the defendants.</p>

<p>Action for damages. Before Judge Hodges. City court of Macon. March 11, 1903.</p>

<p>Complaint. Before Judge Felton. Bibb superior court. April 24. 1903.</p>

Complaint. Before Judge Hodges. City court of Macon. June 29, 1903.

<p>Money rule. Before Judge Hodges. City court of Macon. June 16, 1903.</p>

<p>1. It is the duty of an agent to keep his accounts in a regular manner and to be always ready with-them, supported by proper vouchers, whenever an accounting is reasonably requested.</p> <p>2. When property has been delivered to an agent to sell and account for the proceeds, in a suit by the principal for an accounting, after it has been shown that the property delivered to the agent has been sold, the burden of proof is upon the agent to show either that he has accounted for the proceeds, or some sufficient reason why he has failed to do so.</p> <p>3. Applying the principles above stated to the present case, the errors in the charge of the judge were of such a character as to require the granting of a new trial.</p>

Action for damages. Before Judge Eelton. Bibb superior court. August 3, 1903. This is the second time the case has been before this court. See 116 Ga,. 954 The plaintiff and the defendants were in a street-car. He was drunk and used an opprobrious epithet to one of them, and an altercation ensued. One of the defendants cried out that the plaintiff was armed, and a bystander searched him and reported that he had no pistol.

Injunction. Before Judge Spence. Decatur superior court. August 10, 1903.

<p>1. A party is not entitled to an injunction when, with full knowledge of his rights, he has been guilty of delay and laches in asserting them, and has negligently suffered large expenditures to be made by another party on whom great injury would be inflicted by the grant of the injunction.</p> <p>2. A mere threat to take legal proceedings is not sufficient to prevent the application of this rule.</p>

<p>An attempt to board a train of cars, running at eight or ten miles an hour, by a young, strong, and active man, with experience as a “ traveling man ” in boarding and alighting from moving cars, is an exposure to “ obvious risk of injury,” within the meaning of an accident-insurance policy which excepts the insurer from liability for injuries received as a result of “ voluntary or unnecessary exposure to danger, or to obvious risk of injury,” and, when made merely for the purpose of avoiding the delay incident to missing the train, will prevent a recovery against the insurer for injuries received in consequence of such attempt.</p>

<p>Certiorari. Before Judge Felton. Bibb superior court. June 8, 1903.</p>

<p>Affidavit to evict tenant. Before Judge Felton. Bibb superior court. August 4, 1903.</p>

<p>Complaint. Before Judge Toombs. City court of Washington. February 16, 1903.</p>

<p>1. The charges of the court complained, of by direct exceptions in this case, when considered in connection with the entire charge, the.evidence and the verdict rendered, do not appear to have been necessarily ■controlling. Acts of 1898, p. 92 ; Van Epps’ Code Supp. § 6241.</p> <p>2. A conversation between the attorneys of the respective parties, as to an important issue in the case, had in the absence of the party to be affected by the testimony, ought on objection to have been excluded. •' ■ • •</p> <p>8. When the defendant in a tort case assumed the burden of proof, and the plaintiff introduced no evidence and claimed the conclusion of the argument to the jury, this court can not say as matter of law that the court erred in refusing the plaintiff that privilege.</p>

<p>1. Where parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements is inadmissible to add to, take from, or vary the written instrument.</p> <p>2. Where a note given for the purchase-money of a horse contained the statement thatlt was given to the payee, as per contract for one black horse about seven years old, a little thick-winded,” the words “a little thick-winded” did not amount to “ an express warranty that the horse was sound, that he had no disease which would render him worthless, and that the ‘ little thick windedness’ would not hurt him.”</p> <p>3. It is not erroneous to fail to instruct the jury as to the corftention of a party when there is no evidence to support it.</p>

<p>1. Where A and B entered into a parol contract by the terms of which B was to rent a certain storeroom from A for the term of two years, at a stipulated price per ye'ar, and B went into possession of the same under such contract, a tenancy at will was created, which either party could terminate by complying with the Civil Code, §3117. Accordingly, where B, more than a month before the expiration of the first rental year, gave a written notice of his intention to terminate the tenancy at the end of that year, and, before the beginning of the'second year, moved out of the rented premises, tendered the possession thereof to the landlord, and paid one year’s rent, his liability • under the contract was completely extinguished.</p> <p>2. Although a tenant may abandon the rented premises before the expiration of the term and may notify the landlord, that he will no longer abide by the rent contract, the landlord has no right of action for the rent stipulated in . the contract until the same falls due thereunder.</p>

<p>Complaint. Before Judge Toombs. City court of Washington. August 8, 1903.</p>

<p>Where a testator by his will devised certain land to W. S., “in trust for his wife, M. A., and her children, during his life, and at his death to be their property, and this property not to be sold for debts contracted by him, to have and to hold the same in trust for his wife and children,” the trust was immediately executed as to the wife, she being of age, and as to the children as they respectively came of age.</p>

<p>Action on bond. Before Judge Holden. Elbert superior court. August 6, 1903.</p>